Sunday, May 1, 2016

May 2016 Book update

Florida Firearms – Law, Use & Ownership – 8th edition
copyright 2016 by jon gutmacher

page changes:

19; 188      In 2016 the Legislature removed the restrictions on slungshots such that it is no longer a crime to sell or possess these, even as a minor, and it is not considered a “weapon” unless used as such.

27; 138:        Henderson v.  United States (U.S.Sup.Ct.  May 18, 2015) – held a federal court has equitable jurisdiction to allow a convicted felon to transfer firearms he did not dispose of prior to conviction,  to another where the court is satisfied the firearms will not be returned to, or thereafter controlled by the felon.

chap. 5:     In 2015 the Legislature passed an amendment to F.S. 790.01 that should overrule Mackey v.  State, 124 So.  3d 176 (Fla.  2013), in a charge for carrying concealed by making the issue of whether the defendant has a valid CWL an “element” of any charge, rather than a defense.  However, the courts have yet to interpret this new amendment.

102:     Pennamon v.  State , (Fla.  1DCA January 2, 2015), held that a parking lot surrounding a person’s regular place of business qualifies as their “place of business” pursuant to F.S. 790.25(3)(n), allowing open or concealed carry regardless of a CWL (although an employer could still discipline you if against policy)

69, 70 & 114: Bonidy v.  United States Postal Service (10th Cir.  June 26, 2015), held that a post office parking lot is both a “building” and “sensitive area” under federal law prohibiting firearms possession even if otherwise lawful under state law.  A very poorly reasoned decision that overturned the lower district court.  This may require retreat under the 2014 changes to Chapter 776, as it would be a legal question whether having a firearm in such area is a “criminal act” because it violates federal law, even though it is legal under Florida law.

70-72; 123: Same amendment also eliminated wording in 790.01(3) that previously made it a grey area whether a CWL holder was treated any different than a non-holder in regard to carrying certain non-lethal self defense weapons.   The result is anyone can carry these weapons in the same places and manner.

Chap. 5       In 2016 the Legislature passed SB-666, allowing you to use your CWL as voter identification.

Chap. 5        In 2016 the Legislature passed SB-772, which has several sections.  One requires before any suspension or revocation of your CWL is allowed the Department must send a certified letter to your last given address, and if returned then again by first class mail or email if you provided such.  Another provides for expedited processing of a CWL application if you are a veteran or current member of the military.  Still another allows your local tax collector to actually issue a CWL license on a renewal made at their office (if they accept renewals).

149-150 Same amendment added 790.01(3)(a) which provides that you may now carry a “concealed” weapon or firearm “on or about your person” during a mandatory evacuation “while in the act of evacuating”.  No CWL is required – however, the weapon or firearm must be kept concealed.

149.  A 2014 amendment to F.S.493.6115 (6), now allows a “G” security guard licensee to carry up to two  .38 revolver; .380 semi-auto; .40 semi auto; .45 semi-auto; while on authorized duty using only factory ammo.  A discharge must be reported to the Department within 5 working days.

190     SB-772 passed in 2016 now requires all instructors to use live ammunition and an actual “firearm” in certifying any student for a CWL.

194      A 2016 change by the legislature requires backyard shooting ranges to normally be on property zoned over an acre.

263     In Bretherick v.  State, (Fla.  July 9, 2015), the Florida Supreme Court held that the burden of proof in an immunity hearing is on the defendant, and not the State.

Chap 12    Beginning July 1, 2016, there is no longer any mandatory prison sentence for aggravated assault, nor any mandatory sentence for a warning shot or type of firearm or magazine when the charge is “aggravated assault”.  For all other charges – mandatories are unchanged.

Friday, April 8, 2016

NRA digital course requirements -- my opinion

I received an email from an NRA instructor, not pleased about the NRA now requiring part of their courses be online thru the NRA, and charging a fee very close to what some instructors were charging for the whole course.  Here's my response -- which is totally just my opinion.

The NRA is just cashing in on what many others were doing -- offering online courses by NRA certified trainers who then issued a certificate.  Lots of incoming competition.   That left only the shooting portion here in Florida.  So, the NRA counter-attacked, and as such, it's all about keeping their position, as well as cash in a changing environment.  So, do I support it -- no.  Is it a sign of the digital times?   Maybe?   On the other hand -- the State does not require an NRA course -- only an NRA certified instructor.  But, the NRA can revoke your credentials if it finds out you are not doing their NRA thing the NRA way.  Likewise,  if your course varies in any way -- the NRA requires that all your advertising and materials must say it is not an "NRA"  course.

 I prefer the old way -- but understand competition in the digital world drives certain responses, good or bad.  The only way around it would be Florida law requiring the course be given live.  I'm not sure if that would pass constitutional challenge in totality, although it probably could if drafted correctly.  So . . .  that's my response. 

Monday, April 4, 2016

A Warning to the West on Islam

I merely post this because I think it is important.  I received it today in an email, and have sent it by email to almost everyone I know.  If I offend anyone -- then let the truth hurt:

 In 2010-11 Geert Wilders was put on trial in the Netherlands, charged with five counts of inciting racial hatred over his anti-Islamic public statements. He was acquitted in June 2011.  This is his message to the West:

Read all of it....
In a generation or two, the US will ask itself: "Who lost Europe ?" Here is the speech of Geert Wilders, Chairman, Party for Freedom the Netherlands , at the Four Seasons in New York , introducing an Alliance of Patriots and announcing the Facing Jihad Conference in Jerusalem .
Dear friends,
Thank you very much for inviting me.

I come to America with a mission.  All is not well in the old world.  There is a tremendous danger looming, and it is very difficult to be optimistic.  We might be in the final stages of the Islamization of Europe.  This not only is a clear and present danger to the future of Europe itself, it is a threat to America and the sheer survival of the West.  The United States as the last bastion of Western civilization, facing an Islamic Europe.

First, I will describe the situation on the ground in Europe ..  Then, I will say a few things about Islam.  To close I will tell you about a meeting in Jerusalem ..

The Europe you know is changing.

You have probably seen the landmarks.  But in all of these cities, sometimes a few blocks away from your tourist destination, there is another world.  It is the world of the parallel society created by Muslim mass-migration.

All throughout Europe a new reality is rising: entire Muslim neighborhoods where very few indigenous people reside or are even seen.  And if they are, they might regret it.  This goes for the police as well.  It's the world of head scarves, where women walk around in figureless tents, with baby strollers and a group of children. Their husbands, or slaveholders if you prefer, walk three steps ahead. With mosques on many street corners.  The shops have signs you and I cannot read. You will be hard-pressed to find any economic activity. These are Muslim ghettos controlled by religious fanatics. These are Muslim neighborhoods, and they are mushrooming in every city across Europe . These are the building-blocks for territorial control of increasingly larger portions of Europe , street by street, neighborhood by neighborhood, city by city.

There are now thousands of mosques throughout Europe .  With larger congregations than there are in churches.  And in every European city there are plans to build super-mosques that will dwarf every church in the region.  Clearly, the signal is: we rule.

Many European cities are already one-quarter Muslim: just take Amsterdam , Marseille and Malmo in Sweden ..  In many cities the majority of the under-18 population is Muslim.   Paris is now surrounded by a ring of Muslim neighborhoods. Mohammed is the most popular name among boys in many cities.

In some elementary schools in Amsterdam the farm can no longer be mentioned, because that would also mean mentioning the pig, and that would be an insult to Muslims.

Many state schools in Belgium and Denmark only serve halal food to all pupils.  In once-tolerant Amsterdam gays are beaten up almost exclusively by Muslims.  Non-Muslim women routinely hear 'whore, whore'.  Satellite dishes are not pointed to local TV stations, but to stations in the country of origin.

In France school teachers are advised to avoid authors deemed offensive to Muslims, including Voltaire and Diderot; the same is increasingly true of Darwin .  The history of the Holocaust can no longer be taught because of Muslim sensitivity.

In England sharia courts are now officially part of the British legal system. Many neighborhoods in France are no-go areas for women without head scarves.  Last week a man almost died after being beaten up by Muslims in Brussels , because he was drinking during the Ramadan.

Jews are fleeing France in record numbers, on the run for the worst wave of anti-Semitism since World War II.  French is now commonly spoken on the streets of Tel Aviv and Netanya , Israel ..  I could go on forever with stories like this. Stories about Islamization.

San Diego University recently calculated that a staggering  25 percent of the population in Europe will be Muslim just 12 years from now.  Bernhard Lewis has predicted a Muslim majority by the end of this century.

Now these are just numbers.  And the numbers would not be threatening if the Muslim-immigrants had a strong desire to assimilate.  But there are few signs of that.  The Pew Research Center reported that half of French Muslims see their loyalty to Islam as greater than their loyalty to France .  One-third of French Muslims do not object to suicide attacks. The British Centre for Social Cohesion reported that one-third of British Muslim students are in favor of a worldwide caliphate. Muslims demand what they call 'respect'.  And this is how we give them respect.  We have Muslim official state holidays.

The Christian-Democratic attorney general is willing to accept sharia in the Netherlands if there is a Muslim majority.  We have cabinet members with passports from Morocco and Turkey .

Muslim demands are supported by unlawful behavior, ranging from petty crimes and random violence, for example, against ambulance workers and bus drivers, to small-scale riots.   Paris has seen its uprising in the low-income suburbs, the banlieus.  I call the perpetrators 'settlers',  because that is what they are.  They do not come to integrate into our societies; they come to integrate our society into their Dar-al-Islam.  Therefore, they are settlers.

Much of this street violence I mentioned is directed exclusively against non-Muslims, forcing many native people to leave their neighborhoods, their cities, their countries.  Moreover, Muslims are now a swing vote not to be ignored.

The second thing you need to know is the importance of Mohammed the prophet.  His behavior is an example to all Muslims and cannot be criticized.  Now, if Mohammed had been a man of peace, let us say like Ghandi and Mother Theresa wrapped in one, there would be no problem.  But Mohammed was a warlord, a mass murderer, a pedophile, and had several marriages - at the same time.  Islamic tradition tells us how he fought in battles, how he had his enemies murdered and even had prisoners of war executed.  Mohammed himself slaughtered the Jewish tribe of Banu Qurayza.  If it is good for Islam, it is good.  If it is bad for Islam, it is bad.

Let no one fool you about Islam being a religion.  Sure, it has a god, and a here-after, and 72 virgins.  But in its essence Islam is a political ideology.  It is a system that lays down detailed rules for society and the life of every person.  Islam wants to dictate every aspect of life.  Islam means 'submission'.  Islam is not compatible with freedom and democracy, because what it strives for is sharia.  If you want to compare Islam to anything, compare it to communism or national-socialism, these are all totalitarian ideologies.

Now you know why Winston Churchill called Islam 'the most retrograde force in the world', and why he compared Mein Kampf to the Quran.  The public has wholeheartedly accepted the Palestinian narrative, and sees Israel as the aggressor.  I have lived in this country and visited it dozens of times.  I support Israel , first, because it is the Jewish homeland after two thousand years of exile up to and including Auschwitz , second because it is a democracy, and third because Israel is our first line of defense.

This tiny country is situated on the fault line of jihad, frustrating Islam's territorial advance.   Israel is facing the front lines of Jihad, like Kashmir, Kosovo, the Philippines , Southern Thailand, Darfur in Sudan , Lebanon , and Aceh in Indonesia .   Israel is simply in the way, the same way West-Berlin was during the Cold War.

The war against Israel is not a war against Israel .  It is a war against the West.  It is Jihad.   Israel is simply receiving the blows that are meant for all of us.  If there would have been no Israel , Islamic imperialism would have found other venues to release its energy and its desire for conquest.  Thanks to Israeli parents who send their children to the army and lay awake at night, parents in Europe and America can sleep well and dream, unaware of the dangers looming.

Many in Europe argue in favor of abandoning Israel in order to address the grievances of our Muslim minorities.  But if Israel were, God forbid, to go down, it would not bring any solace to the West .  It would not mean our Muslim minorities would all of a sudden change their behavior, and accept our values.  On the contrary, the end of Israel would give enormous encouragement to the forces of Islam.  They would, and rightly so, see the demise of Israel as proof that the West is weak, and doomed.  The end of Israel would not mean the end of our problems with Islam, but only the beginning.  It would mean the start of the final battle for world domination.  If they can get Israel , they can get everything.  So-called journalists volunteer to label any and all critics of Islamization as a 'right-wing extremists' or 'racists'.  In my country, the Netherlands , 60 percent of the population now sees the mass immigration of Muslims as the number one policy mistake since World War II.  And another 60 percent sees Islam as the biggest threat.  Yet there is a greater danger than terrorist attacks, the scenario of America as the last man standing.  The lights may go out in Europe faster than you can imagine.  An Islamic Europe means a Europe without freedom and democracy, an economic wasteland, an intellectual nightmare, and a loss of military might for America - as its allies will turn into enemies, enemies with atomic bombs.  With an Islamic Europe, it would be up to America alone to preserve the heritage of Rome , Athens and Jerusalem ....

Dear friends, liberty is the most precious of gifts.  My generation never had to fight for this freedom, it was offered to us on a silver platter, by people who fought for it with their lives.  All throughout Europe , American cemeteries remind us of the young boys who never made it home, and whose memory we cherish.  My generation does not own this freedom; we are merely its custodians.  We can only hand over this hard won liberty to Europe 's children in the same state in which it was offered to us.  We cannot strike a deal with mullahs and imams.  Future generations would never forgive us.  We cannot squander our liberties.  We simply do not have the right to do so.

We have to take the necessary action now to stop this Islamic stupidity from destroying the free world that we know.

Please take the time to read and understand what is written here, Please send it to every free person that you know, it is so very important.

Thursday, March 24, 2016

CWL application -- what if you have a restoration or expunction?

Interesting email came in today on Question #7 in the Florida CWL application which asks if you were ever convicted of a felony.  Of course -- if you weren't -- you answer "no".  (duh!)  But, what if you were, but your firearm rights were restored, or you had an expunction?  What then?

Well . . .  the answer really depends whether there is a record anywhere the DOA will find that indicates you had a conviction,  or even an arrest without showing the eventual disposition.  Any of these would cause a problem -- as you (not the DOA) has the burden of establishing your entitlement to a CWL,  and that means that if they find a record -- it's up to you to prove that you're still entitled to the Florida CWL.  So,  as a practical matter -- your answer will normally be "yes", but you will add to your application that you had your rights restored (pardoned, or whatever) with a certified  or otherwise authenticated copy of that restoration that will prove to the Department that you qualify for the CWL.

Of course,  an expunction is a bit different.  Technically,  an expunction should wipe out all the records the DOA would be able to see.  (it could take a full year for all the computer records to wipe the original case out -- although there are still some files only FDLE , and a few others can see)   So,  if you answer "no" -- and no record pops up -- you haven't lied legally,  and you've also avoided the issue of the DOA wanting proof.  However,  this isn't always the case, and sometimes a record is still lurking around where it shouldn't be -- often in the form of an arrest record without any other record showing the outcome.  In such a situation -- you are still going to have to prove the expunction, Usually -- that's done by a certified copy of the expunction.  If you don't have it -- it could get complicated,  in that you might have to hire an attorney to open up the expunged court file.  That's why I always recommended to clients, when I was doing these things, to obtain a few extra certified copies in case a problem ever occurred years later.

So --   that's the story.    Hope it helps.

Friday, March 11, 2016

Is wrestling an athletic event or entertainment?

I received a question today that I thought was strange, because I couldn't think why the answer wasn't crystal clear to everyone.  Obviously,  the person posing the question understood that.   But, I really worry why his friends didn't.   It's one of the key reasons I wrote the book, and why some very upright folks get into trouble with the law.   They interpret it the way they would like it to be -- not the way it actually works, or would be looked at by most others, or especially -- the courts.  (also why many pro-gun bills are actually not so good -- a failure to truly understand their implications across the board, or how the courts will likely interpret the language)  Anyway,  here's the question as posed:

"Does a wrestling event like Wrestlemania fall under 790.06 (12) (9), professional athletic event not related to firearms?  I say yes, wrestlers are athletes, and Wrestlemania and Monday night raw are events. My friends say no because they market themselves as entertainment. I think the only difference between wrestling and other professional sports is wrestling outcome is predetermined, otherwise there's no difference between wrestling and football."

So -- here's my answer:

Well -- of course it's a "professional athletic event"!   All professional athletic events involve entertainment -- otherwise nobody would watch them.  That's the answer!

Sorry, if the answer is that simple -- but it is.   Wishfully thinking it's not -- is just plain dangerous, in the sense that if you can take that large of a leap of faith into the Twilight Zone -- you might just do something more drastic that could really get you in serious trouble.  

Stay safe!

Monday, March 7, 2016

Is a guilty plea with a withheld adjudication a "conviction" in Florida?

Joseph Peter Clarke was convicted in federal court of being a felon in possession of a firearm due to a Florida case where he plead guilty to a felony, but received a "withheld adjudication".   As anyone who has read my book knows -- Florida case law says this is not a "conviction" under Florida law, whereas the federal 11th Circuit Court of Appeals has held the opposite, saying that only a "no contest" plea with a "withheld" would not constitute a conviction, although more recent 11th Circuit cases have called this interpretation into question, but refused to confront the issue.   However,  the 11th Circuit has finally come to grips with this in the Clarke case [United States v. Clarke, 780 F.3d 1131(11th Cir. 2015)], and sent a certified question to the Florida Supreme Court, retaining jurisdiction in the Clarke appeal pending the answer.

That answer recently came in Clarke v. United States, 41 Fla.L.Weekly S.41 (Fla. 2/11/16), where the Florida Supreme Court answered the question, and held that a guilty plea with a withheld adjudication did not constitute a "conviction" under Florida law, because the essence of a withheld adjudication is that the court has determined the defendant is not likely to reengage in further criminal conduct, and that justice and the welfare of society do not require the defendant suffer the ordinary penalties.  Thus,  with the Florida Supreme Court now answering the question in this direct manner -- the 11th Circuit is now open to revisit the issue -- and in my opinion, it will likely reverse its position, and recognize that a withheld adjudication in Florida does not constitute a conviction irregardless of whether the plea was one of "guilty", or one of "no contest".    While this may take several additional months before a decision is reached and published -- it is significant that the 11th Circuit made the inquiry, and may also be a signal that the federal appellate court is becoming more sensitive to judicial honesty, rather than blindly relying on judicial precedent.   Time will tell.

Can an off duty officer carry on school grounds? Updated.

I had an interesting question from a police officer asking whether an off duty law enforcement officer can carry on school grounds.  Here's my short answer:

While Florida law would allow it pursuant to FS 790.115 because it does not differentiate between an off duty or on duty officer -- still -- federal law would only permit carry:
"by a law enforcement officer acting in his or her official capacity" -- 18 USC 922(q).  So, unless you're on duty,  -- you're out of luck from a federal perspective.  Certainly,  an off duty officer who finds him or herself in a situation where they need to act in their official capacity (and the agency allows it) -- that would qualify.  But just being off duty in civilian clothes wouldn't do it according to the federal statute.  While you mentioned you heard of a federal case that said it was OK -- I would need more info to see if that actually exists, or if the facts were state or agency specific.  Plus, federal cases are circuit specific -- so a case in one circuit might not apply to another -- and a district court case would be even more limited.

However . . .   want a legal way around this stupid federal law?   

Get a Florida Concealed Weapons License!

Yeah . . .  for a law enforcement officer it's as easy as that, because another part of the same section of the federal statute exempts a CWL holder from federal school zone laws!   Thus,  since 790.115 exempts any law enforcement officer, whether on duty or not -- with a valid CWL -- you're likewise exempted from the federal law.

If that's important to you -- pass it on.  Of course,  make sure you are still not in violation of any of your department's regs.   That would be a different kind of trouble.