Legal Issues

Punishment by Process: Defending Against Prosecutorial Abuse

Woman shooting a Browning Hi Power with a two-handed grip

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.

Woman shooting a Browning Hi Power with a two-handed grip
The Browning Hi Power is a modern 9mm well worth your time to master.

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 (53)

  1. Mass Ayoob once said the scariest thing that can happen to you is go up against a prosecutor with an ajenda. He can say or make up anything he wants to press his case and there is nothing you can do about it other than press your case on evidence. A solid knowledge of law and sound legal defense is necessary to your well being in such a situation.

  2. In flagrant cases the cost should be borne by the prosecutor, with no immunity given, otherwise out of the prosecutor’s budget!

  3. Because of situations and cases like the ones mentioned above. I have signed up for US Lawshield. For $10.95 a month they will represent you in court whether criminal or civil court and there are no deductibles or fees other than what you pay monthly. Even if your case goes to the Supreme courts there are no caps on the cost of the case. Lawyers are all local in your state. 24-7, 365. I feel more confident now and they keep you up to date on any laws that change on gun control.

  4. Until the costs, fines and penalties are paid out of the pockets of the bias prosecutors and judges it is not going to change. Do you think they really care if the taxpayers pay another fine or penalty on their behalf?

  5. It is not the damages that we should be looking at, it is the prosecution abusing the system that needs to be addressed. A system need to be put in place that juniors can decided that the prosecution is being malicious in their actions and be able to not only render an acquittal but order a review of the prosecution.

    1. Jurors have the power to render the acquittal. It is called “Jury nullification”. Just do not mention your knowledge of this in the court room or you will be removed from the jury and probably held in conrtempt. Handle it in the jury room.

  6. I like the Washington law. I’ve always found it strange in this nation based on liberty and justice for all that a person can be completely innocent of a crime, but the courts, and sometimes well-funded adversaries ranging from corporations to the government can bring endless resources to a prosecution, ultimately destroying the life of the innocent person without any verdict of guilt. At least having the loser of the case pay the legal fees seems like a suitable reform.

    1. Definitely discourages frivolous lawsuits. Until the costs come out of the prosecutors pocket it will not matter in criminal cases. Lady justice with the scales of justice and sword in Greek mythology was required to use the sword to cut off the head of the loosing attorney. Now that discouraged all lawsuits.

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

  8. 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.

  9. 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!

  10. 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?

  11. 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.

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

  12. 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!!!

    1. 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!

    2. 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!

    3. 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.

    4. 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.

  13. 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.

  14. 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!

  15. 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.

    1. 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.

    2. 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!

    3. 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.

  16. I wish in court there was a way to put a sanction on the amount of money the state can use against you. Yeah I can get a lawyer but the average guy isn’t gonna have even close to the amount that can be a fair challenge. The state has an infinite legal tab. At the risk of sounding not smart, wouldn’t it be cool if how it was is that say you could only afford 5,000 bucks on defense, that the state would have to match your budget and not be able to outspend you. Innocent until proven guilty.

    1. There is a cost, but there are several legal defense insurance groups you can subscribe to. The NRA has its new Carry Guard and U.S. Law Shield is in several states as well as others. ~Dave Dolbee

    2. I bet you’re ok with the amount of money the state can use against black and brown people. Just not whitey.

    3. AGAIN…some a-hole has to bring in race! Why cant we just go by criminal record…..current actions….etc…..case by case Even with all the stand your ground laws, the leftist judges, prosecutors, etc are still trying to thwart our right of self defense in a time we need it most with terrorism, drug use at its highest! NO CRIMINAL OR CIVIL ACTION FOR SELF DEFENSE DEADLY FORCE ACTIONS!!!

    4. What about the yellow!!! To be inclusive you have to say “people of color”. You racist blue eyed devil!!

    5. Kevin, perhaps you’d like to address some particular inequalities in regards to the law. If black or brown people, and I presume you’re implying that they are poor unlike “whitey”, are arrested they get a free lawyer. Unless “whitey” is rich, he gets an average but expensive lawyer who might not be any better than the free lawyer. “Whitey” can and will be sued for all he’s worth whereas black/brown people have lawsuit immunity by virtue of their poverty. Lawyers don’t sue people without money; it’s a waste of their time. Explain to me how this all equates to equal justice before the law.

    6. Stop this ignorant trolling. Your unfounded accusations of racism are absurd. Kevin, you are a fool, and a fool of the worst kind.

    7. … and there it is. The easy over-generalization of the subject into a race issue. The color of a person’s skin should have any bearing in this discussion. The issue at hand is the treatment of the victims of an intrusive violent act, either of their dwelling, their property or their person.

    8. Where did you get from Murphy’s post that he would be ok with unequal treatment. He said average guy. Nothing about color. Unless you are stating that white guys are all only average. Unless I am missing something here.

  17. I support both…I support the revised law that places the burden of proof on the prosecutor during the preliminary hearing…and I support reimbursement if taken to court and the persecution fails to get a conviction.

  18. This judge seems to forget that, golly gee, I have my own bodyguards (armed of course) to protect me, why do I need to care about SYG ??? (see the word “a$$hole” in Wikpedia).

    Also hard to believe the WA state is being held up as a model for SYG.. Since I left there in 2009, it has become one of the worse ant-gun states in the union.

  19. “Rules of court may be repealed by general law enacted by two-thirds vote of the membership of each house of the legislature.”

    Okay, so what’s the issue here?

  20. The deeper part and the part most offensive concerning the approach of prosecutors who take this approach is their relegation of the simple concepts of respect and personal sanctity into the realm of the criminal.

    When a break in occurs, when your homes sanctity as well as respect for your life and security has been violated you find them assaulted a second time and the ground you stood on to defend them shaken by the very body of law and processes created to protect those very concepts. How long should we put up with this kind of government? Where we get double talk about rights and find deliberate process designed to impede their establishment under law and their defense in the most intimate of settings. I am hurt by my own blessed and beautiful nation’s governments. Is there any wonder why there is no real peace.

  21. One should have the and in my humble opinion does have, the right not to retreat from a threat that would cause injury or death, unless in their immediate assessment of the situation it is possible to leave without injury, or death. this should of course apply to preventing someone else from suffering that fate … R/

  22. The last place FL should be looking for guidance is Washington State. Florida has been the leader in upholding the 2nd Amendment and all that it encompasses. They’ve been the one to set the standards not follow them and to begin doing so by looking to a liberal hotbed like the west coast would be bad all around. We don’t know what the vote margins were in enacting the change but if it was high enough they should just repeal their law, NOT adopt someone elses.

    1. I suspect it’s because most senior citizens have learned over the tears just how important how important the 2nd amendment really is.

    2. I would not bet all my money on the seniors. Being a Florida senior my self, I know that in my dads and my step moms case, they became very liberal and passive as they got older. And a vast majority of Florida seniors are from liberal New England states. Thankfully a lot of Florida is full of good old Florida cracker country boys and girls that vote.

    3. That’s supposed to be “years”,,,,, not “tears”
      Sorry, but the “T” is located next to the “Y”.

    4. Years and Tears – equally applicable especially to those who have lost their lives and livelihood to criminals…

  23. If the defendant wins, the state pays ALL costs.
    It works that way in NSW Australia and would be a blessing here.
    It would put the brakes on those intent to further their law careers at the expense, time and emotional distress of the innocent.

    1. The only reason some DA’s go after people, victims and not the criminal, is to make a name for themselves is to climb up the food chain and become a judge. Anymore the criminals have more right them the victims.

      Here’s a wild one. Not guilty and SUE THE DA, AND THE JUDGE.

    2. All costs PLUS…cover the time, stress, and aggravation of having had to go to court in the first place.

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