“Innocent Until Proven Guilty”, or at Least it Should be!

Exactly. I find it funny how Judges seem to think they can read the Constitution any better than the rest of us. In fact, some of us have even studied the history behind it, the history that led up to the amendments and what the founders were trying to prevent from happening. Thank you for the comment!

Thank you for the comment, Steve, I have been in 3 OIS and thankfully never one outside of work, all of which were taken to a Grand Jury and cleared of any issues. But if I had, my thoughts were along the same lines. I would be inclined to respond to them requesting this hearing by "If you have enough to charge me, charge me and let's get a jury to listen to it, if not, leave me alone." I plead the 5th, and you must prove me guilty beyond a reasonable doubt." And as I would not use force unless it was required and met State law, I do not worry too much, plus my insurance will cover any costs. ;)

If you or anyone else is interested in reading the Use of Force Statutes for Florida, they are fairly easy to understand. And they apply to Law Enforcement as well as Civilians all the same. http://bit.ly/2wXkXAE

SGT Chris Wagoner - if the prosecution had to prove beyond a reasonable doubt that the shooter killed a person and not in self defense, and if they failed to do that, the shooter goes free, then all that does is turn a hearing into a trial, absent the jury, discovery, etc. the hearing is not meant to go into all the detail of a trial, that's the whole point. But having a hearing to a preponderance of evidence standard and the judge decides to send it to trial doesn't mean that the shooting has been "ruled" not self defense. A perfect example of that is the George Zimmerman trial. He was sent to trial, but still was acquitted by the jury who believed he was shooting in self defense.

So no constitutional rights are being taken away from anybody. Your right of innocent until proven guilty is about being convicted by a jury of your peers. Any shooter still gets his right to a trial. This law is about not even taking the shooter to trial at all. That's a very different thing. You are trying to take a hearing and apply trial standards to it, and giving it power it doesn't have. It doesn't find someone didn't use self defense. It says let's let a jury decide, given all the discovery and full slate of witnesses that go along with a trial.

LTC (Join to see) - I think you are missing the very basic issue this type of hearing poses on a person that may have just been the victim of an attempted murder, a person should not have to prove to the state they did or did not do anything. Our legal system is based on the state proving every element of a crime. Either the state has enough evidence to try you in court or they don't. If you used self-defense to protect your self, it is up to the state to prove that you did not if that is what they claim. No other "hearings" or "trials" should be forced upon someone until they are charged with a crime. If this type of "administrative" hearings is permitted before criminal trials would it be OK for the State to have an administrative hearing for all other crimes you may be accused of to prove or disprove one of the elements? But since this type of hearing has been permitted, surely the burden of proof should rest on the state, not the victim./defendant.

In no other crime or incident does the state call on the defendant to prove or disprove one of the elements of the crime. Remember innocent until proven guilty in a court of law. The 5th Amendment states "nor shall be compelled in any criminal case to be a witness against himself," which if the Judge finds you did not use self-defense, this administrative hearing is doing just that since you will then be held for a criminal trial on the same incident, and anything you said in the hearing will be admissible in court against you.

There are also arguments that it violates the 6th Amendment clause of a "right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed," since the legal issue of self-defense is being decided by a judge.

One should NEVER have to prove anything, any element, part, or issue in a court of law where one is charged with or may be charged with a criminal violation of law that may result in your imprisonment.

SGT Chris Wagoner - but it is the stand your ground law that created this thing about a hearing to allow the shooter to have an opportunity to avoid trial. Prior to the creation of the immunity from prosecution clause, the shooter would indeed face trial and have a possible conviction hanging over him. The hearing was created to give the shooter a way to avoid that. Prior to that, if a district attorney felt he has a case, whether he was sure it would win or not, then he went to trial. This stand your ground hearing is a new process created to help the shooter. So if you want to do away with the hearing, fine. Then let's just have a trial and let the jury sort it out. But we can't just let any shooter say "I felt threatened " and say "oh, ok, no trial then".

LTC (Join to see) - Actually the hearing was created by the courts, not the law. Subsection (4) of 776.032 was created in 2016 and amended to the law to place the burden of proof back on the State and not the defendant.

In subsection (1) of the law it states: "A person who uses or threatens to use force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in such conduct and is immune from criminal prosecution and civil action for the use or threatened use of such force by the person, personal representative, or heirs of the person against whom the force was used or threatened, unless the person against whom force was used or threatened is a law enforcement officer,.....As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant." which means if you use Justifiable, Lawful, Use of Force the above applies. That decision of application should be made by the investigation and prosecution by the State Attorney.

"In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection (1)." meaning the state now has the burden of proof.

The "use of force - Self-defense" hearing was added by the Courts to vet out cases claiming self-defense and allow the person to prove they used self-defense and be immune from when the evidence was not clear either way. But the courts abused it and required almost everyone to go through the hearing, even when it was clearly a case of self-defense. The change was made to prevent overzealous prosecutors from taking advantage of the hearing.

And actually, as it stood before and now, any person who uses force may claim self-defense. It is then up to the state to prove otherwise. Always has been, and always will be hopefully. The trial or no trial decision is and should always be based on evidence and the case as presented by the police and State Attorney.

As a 35+ year Florida Cop I can tell you the system was screwed up and abused law abiding citizens who defended themselves. I saw it first hand. It gave the state an unfair advantage and that has been fixed by the legislators. I just find it funny that some Judges think that giving back a Constitutional Principle to the citizens was Unconstitutional. That's the premise of the article. Not if Stand your ground is good or bad.