Recently Judge Milton Hirsch declared the newest version of Florida’s Stand Your Ground law as unconstitutional. The recent change in the law shifted the burden from the defendant to the State to prove by clear and convincing evidence that a Defendant is not justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.
In his order declaring the statute unconstitutional Judge Hirsch found that the change to the law was procedural and therefore violated the Florida Constitution. His separation of powers argument was that it should be the Florida Supreme Court that should create procedure and not the Florida legislature.
A judge should not interfere with with the legislative process. The legislature is the embodiment of the people and if the people say they want the State to have the burden of proof then a Judge should not interfere unless it violates a fundamental right. In my analysis of the change of the law it does not violate a fundamental right instead in protects a scared one, the Fifth Amendment (Cannot be compelled to be a witness against yourself).
Make no mistake I think Judge Hirsch is a great judge who is more right than he is wrong, but in this respect I disagree with him.
Houson R. Lafrance