Punishment by Process: Defending Against Prosecutorial Abuse

By CTD Blogger published on in Legal

Controversial Miami-Dade Circuit Judge Milton Hirsch, intensely dislikes the “Stand Your Ground” concept. He ruled the legislature does not have to power to regulate the “Stand Your Ground” law.

By Dean Weingarten

The Florida legislature passed a reinforced “Stand Your Ground” law in 2017. The new law stems from prosecutorial abuses, where people who are clearly justified in using force for self defense, are put through the criminal justice system, even though the chance of a conviction in the courts is slim.

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People charged with a crime faced years of court costs and uncertainty. It is punishment by process. The legislature removed power from the prosecutors and gave it to judges, to prevent this kind of abuse.

“Stand Your Ground” laws have been popular. Two thirds of the States have similar law. The elimination of a requirement to retreat in the face of deadly force has long precedence in the United States, starting with a Supreme Court ruling in 1895.

Judge Hirsh’ decision cites English precedence to the effect that there is a requirement to retreat, and some American cases, but completely ignores the 120 years of precedence in the Supreme Court that supports the Stand Your Ground law. It shows Judge Hirsch’ bias. From Miamiherald.com:

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

The ruling cites this part of the Florida Constitution, and makes the claim that the Legislature is changing a rule of the court, rather than making a law. From Ballotpedia.com:

Text of Section 2:

Administration; Practice and Procedure

(a) The supreme court shall adopt rules for the practice and procedure in all courts including the time for seeking appellate review, the administrative supervision of all courts, the transfer to the court having jurisdiction of any proceeding when the jurisdiction of another court has been improvidently invoked, and a requirement that no cause shall be dismissed because an improper remedy has been sought. The supreme court shall adopt rules to allow the court and the district courts of appeal to submit questions relating to military law to the federal Court of Appeals for the Armed Forces for an advisory opinion. Rules of court may be repealed by general law enacted by two-thirds vote of the membership of each house of the legislature.

A former prosecutor and current member of the legislature, Senator Rob Bradley, disagrees. He is the author of the law. He believes the appeals court will overrule Judge Hirsch. From usf.edu:

But, Sen. Rob Bradley (R-Fleming Island)—the new law’s author—disagrees.

“I would be surprised if it were upheld on appeal,” he said.

If the courts rule that the Florida Legislature overstepped its authority in this case, an alternative would be to reform the law by making it similar to law in Washington state. In Washington, if a defendant is found not guilty after a self-defense claim is made, the state pays the court costs and legal fees of the defendant. This would be another check on the power of prosecutors to punish defendants with process costs.

Conclusion

“Stand your ground” and “Castle doctrine” have both been criticized in the past. However, while the ideal choice in any dangerous situation is to try and retreat, in a vast number of cases this is totally impossible without risking injury or death. Of course, such laws can be abused but overall they are definitely necessary, in particular because after a proven lawful defense shooting there should not be the drawn out liability of a civil suit, let alone a full scale criminal case when self-defense facts are clear and irrefutable.

Which do you support, taking it out of the prosecutors hands or forcing the state to pay the defendant’s legal fees if found to be not guilty. Share your answer in the comment section.

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Comments (50)

  • Anon E Mous

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    Everyone in Florida should write their State Representative and Senator asking when impeachment proceedings against Judge Milton Hirsch will begin!

    Reply

  • Sam Jacinto

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    I support, taking it out of the prosecutors hands AND forcing the state to pay the defendant’s legal fees if found to be not guilty.

    Reply

  • Ben Scratchin

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    I’m with Jack… We must make our voices heard in Congress and State Legislatures to protect our rights, our property and our lives. We must Stand United because the Liberal Left never gives up!

    Reply

  • Oldclimber

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    The barriers to 2A can be set anywhere along the legal course a citizen must take to legally exercise their right to self defense. The anti-2A forces are apparently using any and all means, including ignoring the law, as would any common criminal, to restrict to the point of nullification, this as a Constitutionally enumerated right. My question is, “Why are rights-abusive functionaries/criminals in the legal system protected from the prosecution they exact on other criminals ?” While a payment on costs for innocence is a good start to mitigating the chilling effect on the illegal restriction of rights, that these legally protected criminals have pushed into the legal system, it still does not answer the fundamental fault. That the criminals, are at times, the ones making criminals where none existed. How can a society exist when the hard-working, industrious are placed on the wrong side of the law?

    Reply

  • usar4me

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    It is time for the Legislatures in America to IMPEACH JUDGES who exceed their authority… Judges are not there to make law … PRECEDENT is not law it is the dicta of a particular court and does not stand as law. Judges are seated to administer the law and the court they are assigned not to engage in legislation or to interpret the law… Juries are the laws interpreters and if they need help they can ask the judge … Juries are the final check and balance in the law, not a JUDGE… an unelected administrator.

    Reply

    • rick

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      Agree – until with hold these power hungry judges accountable they will keep doing bad things.

      Reply

  • David Emery

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    Judge Milton Hirsch. What would one expect from a Jewish judge? Without being anti Semitic, which I am not, so many of the Jewish people that I know are outright Marxists.

    They all voted for the communist, Obama and they are all against guns. Many of them are even stupid enough to back the mass immigration into the USA of hundreds of thousands of muslims.

    Yes muslims, you know, the people who have vowed to kill every single Jew on the planet. Oy-Vey!!!

    Reply

    • Ken Brubeck

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      It is stupid and mindless comments like David Emery’s that cause all firearm owners problems. Going on an anti-Semitic tirade and then simply stating you are not anti-Semitic does not make it true. When you say such pitiful garbage and link yourself to us firearm owners and users through a great site like this you drag us all through the mud you wallow in. Try taking the intelligent high road once and criticize the schmuck based on his poor judicial rulings or his over-reach of legislative powers from the bench but c’mon…try using your brain for once before the mouth gets in gear!

      Reply

    • Dan O'Brien

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      Ken, Your comment addresses racism properly UNLESS this is the same David Emery that is affiliated with the de-bunked “truth checking” site called SNOPES. If he is the same person then he is a troll commenting only to discredit the GREAT organization of the NRA by implying that this is a member showing his bigotry. If, again IF, he is not the same then let his comment stand as it is and on its lack of merit!

      Reply

    • RayJN

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      They are Jews by ancestry, Marxists are atheist. How can you be an atheist Jew?
      I do not see how Jews can be Democrats as most of their politician are anti-Israel.

      Reply

    • rick

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      Attributing something to all Jews is what makes a person a discriminating bigot. I could say all politicians are crooks – true most are, but if even 1 is not a crook then you can’t attribute that to all politicians.

      Reply

  • Trax

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    How about lost income due to not being able to perform your duties at your job? Throw that into the mix paid out to a successful victim/defender against the law! While you’re at it, how about throwing in some monetary damages suffered to one’s reputation and relationships. I could keep this list moving along, if needed. Like, perhaps, some sort of civil or criminal penalty for over-zealous prosecutors and/or judges? And, waiver from civil suits for said successful defenders, as well? Oh, yes, this could get interesting for an ambitious legislator.

    Reply

  • Roy Pastorek

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    Recently, I was juror #12 in a homicide case in my town. The trial was for a self defense case where a firearm was used to end a beating in the defendants home. We acquitted him after a vigorous attempt to convict by the state. What I left with was not the weapon that I can use or the training that I needed, it was the $100,000 that I would need to defend myself even if I was in the right!

    Reply

  • Jack

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    I AM ALL IN : Believing the prosecution should pay for all cost concerning STAND YOUR GROUND defense if found NOT GUILTY. I strongly suggest contacting our congressmen and women and urge them to keep fighting for what is right and not to back down to the pressures from Gun Grabbers. Its not the Gun its who is using it that merits its right or wrong use.

    Reply

    • HankB

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      Agree – it’s not “the state” that should pay in the case of an acquittal, it’s the PROSECUTION – that is, the costs ought to come directly out of the DA’s office budget.

      Reply

    • Ben Scratchin

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      I’m with Jack… We must make our voices heard in Congress and State Legislatures to protect our Rights, our Property, and protect our Lives.
      We must Stand United because the Liberal Left never gives up!

      Reply

    • George

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      Let’s take that one step further. Not the State, the prosecutor should have to personally pay the defendant’s legal bill. Let’s see how agenda driven they will be when it is their house and property on the line if they are wrong.

      Reply

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