Tuesday, February 9, 2016

On campus carry -- SB 68

A bill that recently passed the House is also in the Florida Senate, and has run into trouble.  That's SB 68 which is supposed to allow concealed carry by CWL holders on college and university campuses.  I support the bill, but as written, it will completely fail to accomplish anything, but screw up existing law.  That's because it is in direct conflict with Florida Statute 790.115 -- which is likely to be the controlling statute, and would still prevent campus carry, even if SB 68 passes.  Moreover,  the bill fails to extend carry to adult education, career centers, vocational schools -- all places that are primarily for adults, usually in not so great areas of town, and often held in the dead of night as they are often for folks who work at day jobs, and go to school evenings.  They need to be included!  Likewise, the bill inadvertently takes away the right of college students, faculty, and employees to carry a nonlethal stun gun.  (actually -- that should right should be expanded to include self defense pepper sprays and Taser type weapons -- all nonlethal, and very much needed for non-CWL individuals).   So -- I sent a fax to the sponsor of the bill, Senator Evers -- with a very easy fix -- and here's a copy of the letter text:


SB 68 – CAMPUS CARRY – UNINTENDED PROBLEMS & A CURE:
The purpose of SB 68 is to allow CWL holders to carry firearms or other weapons on college and university campus for self protection.  However,  as pointed out in both the Education and Criminal Justice Committee reports, the language of the bill will conflict with the specific wording of F.S. 790.115, which makes it a crime to possess any firearm or weapon “on the property” of any “school”.  The definition of a “school” includes post secondary education and career centers – hence it includes trade schools, career center, colleges, and universities.  Since this statute is specific, and there is no language in the current bill to overcome it, SB 68 will fail to accomplish anything except a long period of litigation in the courts, and the unfortunate arrests of citizens caught between the two laws.  Likewise, assuming that an appellate court eventually does find that the bill supercedes the prohibitions in F.S. 790.115, the bill as currently written would allow both “open” and “concealed” carry by a CWL holder, rather than just “concealed carry” as the current committee reports specify – as neither report took into account the fact that the “open carry” bill is likely to pass the Legislature this year.  And finally, the bill inadvertently wipes out the current right of all university and college students, faculty, and employees to carry a nonlethal stun gun.

The Easy Way to Fix it:
However, there is a very easy way to fix the problem, and accomplish the legislative goal by leaving the current wording of subsection, but add the following:   “except that a holder of a valid Concealed Weapons License may carry a firearm or other weapon on the property of any college or university concealed”.  Thus, the amended wording would be:

790.06 License to carry concealed weapon or firearm. –

(12)(a) A license issued under this section does not authorize any person to  openly carry a handgun or carry a concealed weapon or firearm into:
m. Any college or university facilityunless the licensee is a registered student,  employee, or faculty member of such college or university and the weapon is a  stun gun or nonlethal electric weapon or device designed solely for defensive  purposes and the weapon does not fire a dart or projectile; “except that a holder of a valid Concealed Weapons License may carry a firearm or other weapon on the property of any college or university concealed.”

Additionally, the wording could be changed to also exclude career centers, adult education, and vocational schools from any prohibition.  If there were an issue with such being housed within an elementary or secondary school – then the language would be: “ except that a holder of a valid Concealed Weapons License may carry a firearm or other weapon on the property of any college or university, and upon the property of any vocational school, adult education, or career center in a concealed manner unless such was on the property of an elementary or secondary school.”  If this last choice is made – then sub-subsection (11) “any career center” would have to be deleted.

Wednesday, January 20, 2016

Action needed this week on immunity bill

Senate Bill 344 comes up on the full Florida Senate floor on Thursday of this week.  (January 21, 2016).  Your email to the senators is critical.  Here's a copy of my email to them, with a list of email addresses at the very end:


 Re:  SB 344  -- restore "immunity" to more than just a name

Dear Senator:

In 2005 the Legislature decided that citizens should be "immune" from arrest and prosecution when they used lawful self defense, and passed what became known as the "Stand Your Ground" law.  While this law has many facets -- the immunity portion was emasculated by the courts -- which held that contrary to long standing legal principles (Kastigar, qualified immunity, etc) that in any challenge to a prosecution,  the defense would have the burden of proving entitlement to immunity rather than the State.  That turned "immunity" into just another ordinary defense, plus it destroyed the concept in actual practice.

Why?

Because the State is supposed to have all the evidence BEFORE it files charges -- whereas the Defendant normally has to spend months in discovery, trying to find out what the evidence is against them, who the witnesses are, what they said -- and then figuring out how to counter this information.  That means -- as a practical matter -- that unless the defense attorney wants to be sued for malpractice for not preparing -- months of preparation are needed before any motion to dismiss charges can be brought.   To a defendant -- that means a long period of extreme stress on self and family,  tremendous cost, and perhaps long term incarceration prior to trial unless they have the funds to pay for bond, and don't mind the restrictions of being out on bail for a period of several months.   In other words -- "immunity" becomes just a word, and its real purpose is emasculated.

I urge you to restore "immunity" to what it was meant to be.  If the State doesn't have the evidence -- then they shouldn't bring the charges.  Moreover,  there is no shame in the State waiting for a month or so before bringing charges -- if that's what it needs to do to gather evidence, rather than shift the burden onto the citizen. Honest citizens shouldn't have to rot in jail, or pay tens of thousands of dollars because they used self defense to save themselves or their family -- with the State rushing to prosecute before the facts are in.  Either the government has the evidence to establish guilt -- or they don't.  If they don't -- don't arrest and charge someone!  That's what immunity is about.

Respectfully,
Jon H. Gutmacher
author:  Florida Firearms

List of senators email addresses:

Sunday, December 27, 2015

Florida Immunity Takes Another Step Backward

Florida Immunity Takes Another Step Backward
copyright 2015 by jon gutmacher

I've warned folks that "immunity" in Florida is merely a word, and doesn't mean what it says.  As a practical matter "immunity" in Florida is a hybrid affirmative defense like any other defense, other than you get the opportunity of a pre-trial evidentiary hearing to test it, if you care to do so.  An excellent example of how it doesn't work is found in December 22, 2015, case of Rudin v. State, 20 Fla.L.Weekly D2823 (Fla. 1DCA 2015).  A case where the defendant was prosecuted for aggravated battery when defending himself against an attack by a relative wielding a "stick".

In that case the defendant (an adult) got in an argument with his father at the father's home, and his father grabbed a "stick" (not my description -- but the description of the appellate court) that was two inches around, and four feet long to protect himself from the defendant as the defendant advanced upon him.   The father testified he did so because his son had punched him in a previous argument. (Obviously,  he hadn't read my book)  The defendant then left the father's home and arrived at his grandmother's home down the block. However, before doing so he deliberately ripped the canvas cover of his father's truck.  As you probably have surmised, there was a history of physical confrontation between the two in the past.  (Who would have guessed?)

Dad, not being overly pleased with the unwelcome renovations to his truck decided that rather than call the cops -- he would take care of things himself, and therefore followed after his son, and confronted him at the grandmother's home.  Dad being still armed with the "stick".  (I would rather call it a "club" -- but that's because I'm not an appellate judge, and actually know what it can do).  Confronting the defendant, who "stood his ground" -- dad took a swing at the son's head.  The son (ie: "defendant") managed to intercept the swing, grabbed the stick, and simultaneously struck dad with a knife.  (Ya gotta love these families!)  In the process -- the only injuries suffered by the defendant were minor ones to his hand and wrist.

At the time of the pretrial immunity motion, the defense argued that the son was justified in using deadly force in self defense because his father was using deadly force against him -- or alternatively -- that the attack by the father was a "forcible felony", and the son had the right to use deadly force in such a situation.  The defendant did not testify at the hearing.

In rejecting the "immunity" claim in a pre-trial hearing,  the trial judge found the stick/club was not a "deadly weapon",  therefore  since there was no evidence that the defendant had a reasonable fear of death or great bodily harm (because the defendant never testified at the hearing) he had no reason to use deadly force to stop the attack.  The appellate court agreed saying that the determination of what is or is not a "deadly weapon" is one for "the trier of the fact", and is determined not by the "capability" of the weapon -- but the "likliehood" it will produce death or great bodily harm.   The appellate court noted that the injuries to the defendant were slight, and since the trial judge had examined the stick -- the trial judge was in a better position to determine if it was a deadly weapon, or not.  The concurring opinion likewise centered on how the "stick" was used by the father, and noted that whether it was a "deadly weapon" or not depended on its composition (cardboard, plastic, steel, etc), the force used, frequency of blows, and relative size and strength of the individuals involved.

In my usual insightful, in depth analysis, and just to stay in the Christmas spirit:   BAH!   HUMBUG!

Why?

Because when somebody swings a large club at your head -- anyone (other than a judge) should realize that was at least an "attempted aggravated battery", and most certainly an "aggravated assault". (An "aggravated assault" does not require contact or injury, and is also a "forcible felony")  I suggest all judges involved in this case should have someone swing a four foot long, two inch wide club at their unprotected head -- make sure they do not do anything to block it -- and I will be glad to visit them in the hospital (or grave site), and tell them:  "I told you so!"

The fact that it was intercepted is not the issue.  (unless the father was first totally disarmed).  The fact is that any reasonable person would understand that UNLESS the attack was prevented -- they were in for a possible very serious injury!

Sure -- son intercepted it.   But, dad still had possession of the club.  He was still a very serious danger -- regardless of size, and physical abilities.  Plus -- even the appellate opinion admits that the son used the knife "simultaneous" with the block.  Thus, it was used "at the moment" of the attack!

So . . .  while I am not condoning the actions of two morons -- I am saying that the lower court and appellate court totally missed the mark.  Maybe the attorneys did, too?  Maybe just having the defendant testify would have been a smart thing to do?  (that would take more knowledge about the case than I have).

Whatever,  in my opinion,  it was a valid self defense case, and immunity should have been granted on the basis of preventing a forcible felony.  (emphasize:  "preventing")  So -- as usual, nobody called me for my opinion or advise.  And,  quite frankly -- you should take this as a warning that any time the situation is not a clear-cut one of self defense  (ie:  home invasion; armed robbery; kidnapping; forcible rape; armed carjacking) -- the courts are likely to be very unfriendly to your claim of immunity.

On that note  -- have a Great New Year.

[this article may be freely downloaded and shared and used , so long as my name and copyright and authorship are included at the top}

Wednesday, November 4, 2015

Does Florida Statute 790.25(5) require all "securely encased" firearms be "concealed"?

Does F.S. 790.25(5), require that all securely encased firearms and weapons be concealed?
copyright 2015 by jon gutmacher

I had an interesting question from a reader that at first blush,  would appear to require all securely encased firearms and weapons also be kept concealed.  Here's the actual question:

"Jon, I am curious how you arrive at the conclusion "while it is considered lawful for a properly holstered firearm or other weapon to be kept in the open within a private conveyance..." when statute 790.25(5) explicitly states that it must be concealed, "...for a person 18 years of age or older to possess a CONCEALED firearm or other weapon....".?

Now -- 790.25(5) does state . . . "it is not a violation of s. 790.01 for a person . . . to possess a concealed firearm or other weapon . . . within the interior of a private conveyance . . . if the firearm or other weapon is securely encased . . . ."

So -- sounds like this reader got it right, doesn't it?

Well . . .  the answer is "no" -- and that's not because he wasn't sharp.  In fact, he was really sharp to have concluded that.  But, he was still wrong.   Why?

Well,  That portion of 790.25(5) specifically refers to F.S.790.01, and F.S. 790.01 is a statute that ONLY deals with "concealed" firearms and weapons.  It does not deal with "open carry" -- which is covered in F.S. 790.053, and would be controlled by F.S. 790.25(l), as long as the firearm or weapon were still "securely encased".  (the typical example -- a strapped handgun on the seat)(which -- by the way -- I do not suggest you do, legal or not).

Pretty tricky, huh?   I'll bet that even 90% of all lawyers and judges would get that one wrong, as well, unless they had someone who understood this stuff  pointing out the correct reasoning behind it.
Very easy to miss.

So, hope that clears it up.  Have a great day!

Tuesday, October 13, 2015

Let's decriminalize "open carry" for CWL holders!!!!!

Wow!   Talk about an incredible idea nobody ever thought about!!!  Sean Caranna of Florida Open Carry sent me a comment where he made this suggestion, and I thought about it for a second, and went "WOW!" -- why the hell didn't I ever think of that?   In fact -- why the hell wasn't this the main feature of HB 163 instead of all this "open carry" stuff???

Talk about solving a problem once and for all!

Make "open carry" for a CWL holder a civil infraction!!!  In other words -- no arrest.  Just a lousy fine.  Make the fine not more than $25.00 plus costs, and we've just solved the main open carry problem!!!      Talk about easy!

I'm not saying the rest of HB 163 isn't needed -- it is!   Very important.   And of course,  I've made some additional suggestions:

Like:   "It is lawful and not "open carry" for a firearm or weapon to "print" under clothing, nor does unintentional exposure of any kind constitute "open carry" unless the individual so carrying is first warned by a law enforcement officer of the problem, and after such warning refuses to correct it.  Furthermore, any person who is not otherwise prohibited by law may openly carry and display any firearm or weapon upon public property or the property of another which he or she has received permission from the owner or person in charge, except for schools, or other places specifically prohibited by law

Great suggestion, Sean!

Wednesday, October 7, 2015

Florida's "Open Carry" of firearms & weapons bill -- HB 163 -- My analysis (2015)

The "open carry" bill in the Florida Legislature -- 2015.
copyright 2015 by jon gutmacher

HB 163 is a new bill before the Florida Legislature that has several components, some good,  one that is very controversial, and leaves out all sorts of other things that are really needed that would fit right in.

Let’s start with the good stuff.   First, the bill requires the judiciary to “strictly construe” any statute that implicates the right to bear arms, or right of self defense – in the strictest legal fashion possible.   It holds that the right to bear arms is a fundamental right, and that lawful carry of firearms and weapons benefits the public safety. This is obviously very good for gun owners.  It will be of major assistance in any court case.

Next, it clarifies that just because a police officer thinks you’re carrying a firearm or weapon doesn’t give him or her the right to arrest or detain you unless they also have “probable cause” to believe you’re unlicensed.   The lesser standard of “reasonable belief” is superceded.  Of course, an officer would still be able to stop you if they had a reasonable basis to believe you were about to commit a crime, or were involved in a felony.  However, they couldn’t hassle you just because they think you have a weapon on you.  Again – a good thing.

OK – let’s move to the controversial part – section 3.  That’s the right of any CWL holder to openly carry a firearm or weapon anywhere they could now carry it concealed.  Lots of gun owners like this.  Lots don’t.  I’m a don’t, as are the majority of law enforcement, the majority of the firearms industry, and the majority of firearms instructors.   The reasons?

1.   Concealed carry is working great in Florida.  It has over forty years of case law, and other things interpreting it.  Most folks (especially if they read my book) understand it.  Why screw up the works with something entirely new and different???

2.  Other states that are open carry have a history of open carry.  It’s the norm.  Florida doesn’t.  We’re used to the exact opposite.  When we tried open carry with CWL’s  back around 1987 (I think that was the year) there was a total uproar – and “concealed” became required because every urban area in Florida was screaming against it.  If anything – the sentiment would be worse, today.

3.  Florida has a fluid population, lots of tourists, lots of tourist destinations that will do everything they can to circumvent such a law on their properties, and a business community that will do the same.   It won’t work here.  Likewise, if it did pass, I can guarantee that within one to two legislative sessions the business community would force a new law that made it a crime to enter any business with a posted “no weapons” sign.  That would make your entry a felony trespass.  “Felony!”  Right now – you can do it unless they ask you to leave, or check your bags and refuse to allow you to enter.  Until then, you’re technically a “business invitee”.  But, once told to leave you become a trespasser if you don’t immediately comply.  Other open carry  states have this law.  No reason to believe it wouldn’t happen in Florida.  That would likely significantly restrict where you could go, whereas now, with a concealed weapon or firearm – nobody really cares except at the attractions.

4.  Personally, I want the element of surprise if I have to use or threaten to use a firearm.  Having it openly carried brands me as the guy who gets shot first.  Likewise, I can’t tell you how many situations I’ve heard of, or had to represent where some moron decides he’s gonna challenge the guy with the gun or weapon.  “What are you gonna do, shoot me?”   Boy, do those go bad, fast!

Next problem is what I think is a mistake in the bill if open carry is redacted, and the rest goes forward.  It pertains to a portion of subsection (3) that eliminates the right to momentarily display a fire arm or weapon by a CWL holder.   I’m just saying – if part of the bill passes without open carry – this needs to stay in – not be taken out.

Last – what is the bill missing???   Well, I’ll keep that very short since I could write several paragraphs.

First – we need a change in Florida law to allow open carry anywhere the property owner allows!  Did you know, you can’t authorize a friend to open carry on your property unless it falls within one of the exceptions in F.S. 790.25???   Stupid!  It needs to be fixed!

Second –  I'm tired of Disney screwing with everyone.   There should be a law that every hotel and motel must allow guests to keep concealed firearms and weapons in their hotel room, and securely encased and out of sight in their vehicles.  They have this in several other states.   Usually,  you're allowed to bring the firearm directly to your room from your vehicle, and directly back to your vehicle.  No stops at the snack bar.   Good law that seems fair to both the hotel industry and to the guest.  But at the very least -- it should be lawful if securely encased and out of sight in any parking lot -- no matter who owns the lot.  Hotels,  Disney,  or almost anywhere else!

Third -- rather than pure "open carry" to cure the bad arrests -- 790.053 could be amended to read that it is not open carry for a firearm or other weapon to "print" underneath clothing,  it is not open carry for an individual to unknowingly or negligently allowing a firearm or weapon to become exposed so long as they lawfully conceal it within a reasonable period upon being so informed,  and that it is not open carry for a CWL holder to momentarily show and expose their firearm or weapon to another in a non-threatening manner for one minute or less?    I'm not saying this should be used word-for-word, but it gives you an idea of what else could be done.  And to make it clear -- the rest of HB 163 is a VERY GOOD IDEA!  I just don't like subsection (3) open carry, as a per se rule.

So – that’s my short take.   I’d spend more time.  But, I’ve got other things I need to do.


jon gutmacher

** This article is a copyrighted work -- but may be distributed for non-commercial purposes so long as my copyright and authorship is clearly specified at the beginning.

Sunday, September 27, 2015

Regal Movie Theaters are searching handbags -- what to do

Bag Searches at Regal Movie Theaters
copyright 2015 by jon gutmacher

Well . . .  got an email today from a lady who said her handbag was searched at a Regal movie theater when she entered.  She said they have a sign up that they now search bags and backpacks -- and I guess they interpret that to mean women's handbags, as well.  An usher asked to check her bag on her way in.

So, what's the law???

Well . . .  if you read the book and remember the section on armed trespass -- you already know.  A private company has the right to "ask" to search you or your belongings as a condition of coming on their property.   That's the right to:  "ASK" -- not the right to "SEARCH".

You have the right to agree -- or to -- REFUSE!

If you refuse,  they can ask you to leave, and you must.   You are entitled to a refund, but if they direct you to leave, and refuse a refund -- your remedy is in court -- not by refusing to leave until you get your money back.   That actually becomes a "trespass" -- and if you're armed -- it is a felony "armed trespass".

So -- what would I do???
Well . . .  the first thing I'm going to do right now is email Regal that I am deeply offended by their new policy -- at least as to a woman's purse --  and will go elsewhere until they change it.

But -- what would I do in that situation???

Answer:   I would NEVER --NEVER -- let them search my purse!  Backpacks are kind of different.  I would never take a backpack into a movie theater in the first place. But a woman's purse is different.  It's common.  It's personal.  It's something every woman usually has at the movies (and most other places).  An AK will not fit in a woman's purse.

However,  I guarantee you that if you let them search -- and they see the gun -- they will go ballistic!!!  They will over-react!   Shit will fly!   And you will suffer, at the very least -- embarrassment -- if not a whole lot worse.

Now . . .  if they ask you "WHY" you won't allow a search -- you can reply:  "My purse is very personal.  I am also very offended, as I think you are intruding on my constitutional rights."

At that point -- they can accept your explanation, or insist on their policy.  But either way,  they aren't intruding on your constitutional rights -- as the Constitution is normally a document that applies only to restrict or empower the government -- not private enterprise.  However,   the legislature could make a law forbidding them from asking you -- and quite frankly,  we need some laws in this area that prevent this type intrusion.

So . . .   that's my answer.   Hope it helps.


this article may be copied or distributed for non-commercial purposes so long as my authorship and copyright are included.