How Can We Help?

How Can We

Get In Touch

Follow Us

Visit us


Attorney Richard E. Mirsky represents clients throughout the South Florida area, including Broward, Miami Dade, and Palm Beach counties.

All rights reserved.

305.630.9502 Hablamos Español

Miami judge rules Florida’s new Stand-Your-Ground law is unconstitutional

August 3rd 2017

Florida’s updated “Stand Your Ground” self-defense law is unconstitutional, a Miami judge ruled on Monday.

Miami-Dade Circuit Judge Milton Hirsch ruled that lawmakers overstepped their authority in modifying the law this year to force prosecutors to disprove a defendant’s self-defense claim at a pre-trial hearing.

The judge ruled that under Florida’s constitution, that change should have been crafted by the Florida Supreme Court, not the Legislature.

“As a matter of constitutional separation of powers, that procedure cannot be legislatively modified,” Hirsch wrote in a 14-page order.

The ruling is a victory for prosecutors who have firmly opposed a law they believe makes it easier for defendants to get away with murder and other violent crime.

Hirsch’s ruling isn’t binding – other trial courts across Florida can follow the law if they choose. But it does get the ball rolling on the appeals process, and possibly getting the law reviewed by the Florida Supreme Court.

Sen. Rob Bradley, R-Fleming Island, told the Miami Herald he believes the Legislature acted lawfully.

“I would be surprised if this decision were upheld at the appellate level,” said Bradley, a former prosecutor who championed the modification of the already controversial “Stand Your Ground” statute passed over a decade ago. The change was pushed by the politically powerful National Rifle Association. Gov. Rick Scott signed the new law into effect in last month.

First passed in 2005, Florida’s controversial self-defense law has been criticized for fostering a shoot-first mentality – and giving killers a pass at justice. The law eliminated a citizen’s duty to retreat before using deadly force to counter an apparent threat.

More problematic for prosecutors, the law made it easier for judges — before ever getting to a jury — to dismiss criminal charges if they deem someone acted in self-defense.

The Florida Supreme Court later ruled that defendants, in asking for immunity from criminal prosecution, must be the ones to prove they were acting in self-defense.

In Miami-Dade, judges have thrown several high-profile murder cases after pre-trial immunity hearings, but have also allowed many more to go to a jury.

But the NRA-backed bill, passed in May despite fierce opposition by prosecutors and gun-control advocates, upended the legal framework.

Now, at those pre-trial hearings, prosecutors shoulder the burden of disproving a defendant’s self-defense claim. State Attorneys contended that it essentially forces them to unfairly to try the case twice, making it easier for criminals to skate on violent charges. Under the law, prosecutors must prove by “clear and convincing” evidence that a defendant was not acting in self-defense.

Hirsch found that the changes to the law were “procedural,” meaning only the Florida Supreme Court has the right to make them.

Hirsch ruled on the case of Liletha Rutherford, who is accused of aggravated assault for pulling a gun on a couple during an argument, and Omar Rodriguez, the so-called ‘Neighbor from Hell” who shot and killed a man after an confrontation over dog poop.

The separate immunity hearings will still be held in the coming weeks — but it will be up to Rutherford and Rodriguez to prove their self-defense claims. If either were to lose their bid at immunity, they could appeal to the Third District Court of Appeal, and ultimately, the Florida Supreme Court.

It was not surprising that Hirsch was the first to weigh in on the new law. Since becoming a judge in 2010, he’s often ruled on broader legal issues that sometimes upend conventional norms.

Earlier this year, the judge ruled that Miami-Dade County’s inmate detention policy, spurred by President Donald Trump’s threats to withhold funding, violated the constitution.

Last year, Hirsch also ruled that the a new death-penalty sentencing structure was unconstitutional, a decision that later proved prescient — the Florida Supreme Court ruled the same months later.

In 2012, Hirsch ruled that prosecutors could not say a fingerprint found at a crime scene was a controversial match, a decision later overturned by an appeals court.

When a Tampa federal judge ruled in 2011 that Florida’s drug law was unconstitutional, Hirsch was the only local state judge to follow suit. He tossed out more than two dozen cases, but Miami’s appeals court later reversed Hirsch’s decision.

Original Story Published by Miami Herald on July 3, 2017
Miami judge rules Florida’s new Stand-Your-Ground law is unconstitutional

Leave a Reply

Your email address will not be published. Required fields are marked *