“Stand-Your-Ground” was back in the headlines against over the just-concluded Independence Day weekend, thanks to a 14-page decision by Miami-Dade Circuit judge Milton Hirsch that recent legislative changes to Florida’s self-defense immunity law were unconstitutional, reports the Bradenton Herald newspaper and other sources. (That decision is embedded below.)

Specifically, the recently signed law switched the burden of persuasion on pre-trial self-defense immunity from the defendant to the state, and changed the standard of evidence required from a preponderance of the evidence to one of clear and convincing evidence.

(We wrote about these changes more extensively here: “Florida Changes Burden of Proof of Self-Defense Immunity.”)

In other words, under the revised law once a defendant claims self-defense immunity the state is required to disprove the defendant’s claim of justified use of force by clear and convincing evidence. If the state fails to do so, the judge is to grant the defendant immunity from criminal prosecution and civil suit.

Judge Hirsch’s decision that these changes are unconstitutional is based on the argument that although under the Florida constitution it is the legislature that creates substantive law, only the Florida courts can create procedural law. The judge considered the recent legislative changes to self-defense immunity to be procedural in nature and thus beyond the legislature’s authority.

I claim no expertise whatever in Florida constitutional law, so I will need to leave the merits of Judge Hirsch’ constitutional argument to others. I do, however, claim some modest expertise in use-of-force law, which is the subject of nearly the first half of Judge Hirsch’s opinion.

Having read that half of the decision closely, I can only say that if his knowledge and understanding of Florida constitutional law is as weak and disordered as his knowledge and understanding of Florida “Stand-Your-Ground” law. It seems most unlikely that this decision will withstand appellate review.

Before we get to the merits, or lack thereof, of Judge Hirsch’s coverage of Florida “Stand-Your-Ground” law, however, it is necessary that we, at least, first understand what we are talking about.

Stand-Your-Ground ≠ Self-Defense Immunity

Most important in this regard is that we understand that Stand-Your-Ground and self-defense immunity are two entirely distinct legal concepts, and indeed are covered by completely separate Florida statutes.

Stand-Your-Ground refers to the removal of an otherwise existing duty to retreat before one may use force in self-defense. A minority of 13 states impose such a legal duty to retreat, making it a fifth element of any self-defense claim, in addition to the other elements of innocence, imminence, proportionality, and reasonableness. The large majority of 37 states, however, do not impose a legal duty to retreat. Roughly half of these have either never had such a duty, or have had the duty rejected by case law (court decisions). Roughly half, like Florida, rejected the legal duty to retreat through legislative action. When Florida did this in 2005, it effectively redefined self-defense, broadening the range of conduct that qualified as a justified use-of force (cases that would have failed as lawful self-defense because the defender failed to retreat would now qualify as self-defense because retreat was no longer required).

Self-defense immunity is a legal doctrine entirely distinct from Stand-Your-Ground. Indeed, self-defense immunity it has nothing whatever to do with the definition of self-defense. It merely says that if a person’s use-of-force falls qualifies as lawful self-defense—however self-defense may be legally defined elsewhere—then that person is entitled to immunity from prosecution and civil suit.

The fact that these are two entirely distinct legal concepts is clear to anyone who has bothered to look at the actual statutes.

Stand-Your-Ground (no duty to retreat) language is found in several Florida self-defense statutes, including: §776.012 Use or threatened use of force in defense of person, §776.013 Home protection; use or threatened use of deadly force; presumption of fear of death or great bodily harm, and §776.031 Use or threatened use of force in defense of property. Note that none of those statutes says so much as a single word about self-defense immunity.

Self-defense immunity is found only in a completely separate statute: §776.032 Immunity from criminal prosecution and civil action for justifiable use or threatened use of force. Note that this statute says not a single word about Stand-Your-Ground (no duty to retreat).

So, Stand-your-Ground and self-defense immunity are two entirely distinct legal concepts.

Judge Confuses These Two Concepts

It has, sadly, become common for the phrase “Stand-Your-Ground” to be used to refer to both of these distinct legal concepts, largely because both doctrines were adopted by Florida at the same time, and because of the apparently extremely limited mental capabilities of most of the journalists who cover either of these topics. This has the unavoidable consequences of blurring together in the mind these two distinct legal concepts, and leads to sloppy and inaccurate legal understanding and analysis.

While such sloppiness of thought may be forgivable in journalists and traumatic brain injury victims, however, it is inexcusable in a member of the bench, and particularly a member of the bench who is attempting to make profound changes to one (and only one) of these legal doctrines.

Yet this stupefying blending of legal concepts is exactly what Judge Hirsch engages in with this opinion.

Note that I’m not suggesting that Judge Hirsch merely sloppily uses the phrase “Stand-Your-Ground.” While this is also inexcusably sloppy in a judge, it has become so common among even lawyers and judges in Florida that it is perhaps understandable.

Judge Hirsch, however, goes far beyond mere misuse of the phrase “Stand-Your-Ground” and in fact appears unable to distinguish between the legal concepts themselves.

We know this because the subject of this decision is self-defense immunity, and only self-defense immunity, and yet Judge Hirsch devotes fully a third of his purported discussion of self-defense immunity by instead writing substantively about Stand-Your-Ground (the legal duty to retreat), when the legal duty to retreat is simply not a subject of this case. (Indeed, Judge Hirsch spends a good portion of this part of the decision quoting himself, apparently a habit of his.)

Why Judge Hirsch would lead his decision on a self-defense immunity matter with a substantive discussion of “Stand-Your-Ground” (legal duty to retreat) when in fact his decision has nothing to do with Stand-Your-Ground and involves solely self-defense immunity? Two possible reasons come immediately to mind:

(1) He simply lacks the cognitive function to recognize the distinction between these two distinct legal concepts.  This would be unfortunate for many reasons, not the least of which is that Judge Hirsch is also an adjunct faculty member at the University of Miami School of Law.

(2) He was fully aware that his decision would get vastly more news coverage over the Independence Day weekend if he made the phrase “Stand-Your-Ground” a prominent component of that decision.

Note that these two possible explanations are not mutually exclusive.

Again, I will leave to others the question of the merits of Judge Hirsch’s constitutional argument. The sloppy mental processes and/or self-aggrandizement evident in his discussion of Florida use-of-force law, however, does not suggestthat the constitutional argument is likely to be particularly robust.

As promised, Judge Hirsch’s decision is embedded below:

–-Andrew

Andrew F. Branca is an attorney and the author of The Law of Self Defense, 3rd Edition, and a host on The Outdoor Channel’s TV show, The Best Defense.

[Featured photo is from the Bradenton Herald news report on this story.]