Wednesday, August 27, 2014

E-BOOK ON SELF DEFENSE ON AMAZON

Well . . . you've been asking for it . . .  so here it is.   I finished an e-book on Florida self defense laws that just went on sale at Amazon Kindle.  The book took 400 hours of research and writing to accomplish, and is a full treatment of Florida's self defense laws, including the major revisions to Stand Your Ground passed by the Legislature in 2014.  

The new e-book has several features folks have been asking me to add, for years.  More question-and-answer sections,  actual wording of the statutes, and more case references.  All that was done for this new e-book.  Formatting was a big challenge, and I admit I'm a beginner on how I want future e-books to appear.

Please note that the "Eighth Edition" print version will still cover "everything" in Florida and Federal firearms, weapon, and self defense laws -- plus a substantially expanded section on "what to do" in situations, the courts, and dealing with law enforcement.  It will also cover Tennessee, North and South Carolina, Georgia, and Alabama thanks to contributions from some of the top gun attorneys in those states!  The "Eighth" should come out around Christmas 2014.  Another e-book that covers carry and some of the other areas will also come out by January.  The e-books should allow folks who need the information "in hand" to be available, while the print version will continue to go into substantially more depth, and cover more areas.

Here's a photo of the book cover,  and the Amazon link is:  http://www.amazon.com/dp/B00N1X74EI




Tuesday, July 29, 2014

New case supports my analysis of HB 89

In the recent case of Hill v. State, 39 Fla. L. Weekly D. 1464  (Fla. 4DCA 2014)(en banc), the Fourth District confirmed that F.S. 776.012 and F.S. 776.013 were independent of each other.  This was an "en banc" decision -- meaning that it was important enough for all the judges of the Fourth District to sit on the same case vs. the normal 3 judge panel.  This brought the Fourth District into accord with other DCA's in Florida.  As most of you know who've been reading my book since the passage of Stand Your Ground back in 2005 -- I've been saying this from the "get-go" starting right in 2005, and urged attorneys not to defend self defense cases using F.S. 776.013 except as to dwellings, residences, and occupied conveyances -- because that is the only area where it is normally a wise move to do so.  I've also espoused this at numerous seminars including an annual meeting of the Florida Public Defenders Association.  But . . . that is not what this article is about.   What it's about are the last two paragraphs of the Opinion before the Conclusion.  In those last two paragraphs -- athough "dicta" -- the Fourth District noted that the new wording in HB 89 has changed the law so that there are now no real distinctions between the two statutory sections in that both now require that in order to use deadly force without the need to retreat -- you must be "in a place where you have a right to be",  and cannot be involved in any "criminal conduct".

This confirms what I've been saying about the new law, and also confirms my analysis.  The Fourth District opinion is the "writing on the wall" about how Florida appellate courts will interpret the new language.  This case said the Legislature would not have changed the wording unless they meant to make a substantive change in the interpretation, and how the statutes work.  I warned everyone about this, and the only people who listened were the readers of my blog.     Now -- we're all in for the aftermath -- unless the Legislature amends it when they go back in session in 2015.


Tuesday, July 22, 2014

Cumulative August 2014 "Florida Firearms" book update

Florida Firearms – Law, Use & Ownership  – cumulative update 7th edition only, for August 2014 
copyright 2014 by jon h. gutmacher

This is a cumulative update for the 7th edition of the book printings in 2013 - 2014, only, including the "2014" version of the 7th edition.   Major changes include a correction to flare inserts, and the addition of a brief summary of HB 89 passed in the 2014 legislative session.    The page or chapter number for  the "2014" version of the 7th edition prefaces each change or update. An update in "chart form" will be available on my website by mid-August for download.   You may download and distribute this update so long as the full title and my copyright information is included.   The update is currently in draft form, and may be revised before hitting the website in August, so you may want to wait until then, and just use this as a reference until then:

16-20 Weeks v.  State, 39 Fla. L. Weekly D 35 (Fla.  1DCA 2013), clarifies the mess created by the Bostic case.  In Weeks,  the appellate court held that only the firing or ignition mechanism of a gun determines whether it qualifies as an “ antique replica” or  "antique firearm" regardless of the date of manufacture, or whether it has other features such as a scope.  Thus, a black powder muzzle loader with a percussion cap firing system qualified as a “replica” with the court finding the statute is unconstitutionally vague as to what exactly a “replica” is not, and a felon could not be convicted for having such a gun.  Conflict with the Bostic case was certified to the Florida Supreme Court.  Thus for now, it depends in what part of Florida you live as to what an “antique” firearm is, or isn’t  – at least until the Florida Supreme Court settles it.

30    Effective July 1, 2013,  Florida Statute 790.065 has been amended by extending the definition of “committed to a mental institution” to include anyone admitted per the Baker Act for involuntary examination where the examining physician found the person to be an imminent danger to themself or another, and the person agrees to voluntary treatment after being furnished written notice that they may lose certain firearm and CWP rights if they agree.   There are other requirements, and there is a court procedure to restore firearm rights upon proof that the person “will not be likely to act in a manner dangerous to the public safety, and the granting of relief would not be contrary to the public interest.”

80 The Florida Department of Agriculture, Division of Licensing website  has changed to:
http://www.freshfromflorida.com/Divisions-Offices/Licensing/Consumer-Services/Concealed-Weapon-License

72 new reciprocity  –  Iowa has been added, Washington deleted, and Pennsylvania only recognizes the Florida CWP for actual Florida residents.

135 Correction:   BATFE has determined that any smooth bore insert fitted into an emergency rescue flare gun or flare launcher to allow firing of a cartridge or shotgun shell makes the device “any other weapon” under the National Firearms Act, whereas a rifled bore insert of less than ½ inch diameter would be considered an ordinary “pistol” if all the other characteristics of a pistol were retained.  Catastrophic failures have occurred in flare guns using some inserts. See,  ATF 2/25/2010 opinion letter 903050:MCP – 3311/2010-339 at http://www.gaugemate.com/images/stories/gaugemate/batf.pdf.  

113 &  171-176 In  Florida Carry, Inc.  v.  Univ.  of North Florida, 38 Fla. L. Weekly D 2592 (Fla.  1DCA 2013), the appellate court held that only a “school district” may prohibit a securely encased firearm in a conveyance, and neither a college or university qualifies as a “school district”.  This confirms dicta in an earlier decision out of the Fourth District, and firmly establishes that you may have a securely encased firearm in your vehicle on any college or university campus in Florida despite any conflicting rule.   Obviously,   this should also apply to any other type “school” not run by and in a “school district”.

187-188 Visa Waiver program entrants are not considered “non-immigrant aliens” and therefore can rent or use firearms in the United States, and purchase ammunition anywhere.  However, they still cannot purchase a firearm (except for export) unless they qualify as a resident of a state.  Same for most citizens of Canada and Bermuda, unless they entered on a visa.   Entry into the United States is now online through ESTA, along with a passport.

204 While a backyard range is subject to any existing noise ordinances, once it goes into operation, any later noise ordinances cannot make it illegal or a nuisance.  Moreover, any new neighbors upset by a previously operating home or commercial range may not complain of noise issues.  Florida Statute 823.16
211 State v.  Caamano, 105 So. 3d 18 (Fla.  2DCA 2012), held that law enforcement officers are not entitled to claim immunity from criminal prosecution as to the amount of force used in making an arrest as such is totally determined  by Florida Statute 776.05.  

222 Brown v.  State, 113 So. 3d 103 (Fla.  5DCA 2013), merely reconfirms that a deadly weapon can be used without using deadly force, and the issue is usually a jury question.

236 It is now established that Florida Statute 776.012 works independent of 776.013.  Little v.  State, 111 So. 3d 214 (Fla.  2DCA 2013).   Unfortunately, legislative changes in 2014 contained in HB 89 have almost totally obliterated the distinctions, and substantially impaired the immunity protections that used to exist in 776.012.

249 Little v.  State, 104 So. 3d 1263 (Fla.  4DCA 2013), held that Florida Statute 790.25(n), allows open or concealed carry of a firearm in any "place of business" which is defined as "simply a location where business is transacted”, thus a union official was at his “place of business” and lawfully carrying concealed without a CWP when he was in the parking lot of the union hall he was visiting for union purposes.   Likewise, Santiago v.  State, 77 So. 3d 874 (Fla.  4DCA 2012), reaffirmed that a person may conceal carry without a CWP at their own residence premises.

259-261 State v.  Williams, 127 So. 3d 890 (Fla.  1DCA 2013), citing to prior case law held that a stray shot that caused injury to a bystander is not a criminal violation if done in lawful self defense against another.

262 CCW Safe,  Patriot Legal Protection, LLC, and Armed Citizens Legal Defense Network appear to offer the most protection for self defense situations – at least on paper.

308-310 Mobley v.  State, 39 Fla. L. Weekly D 64 (Fla 3DCA 2014), is probably one of the most important self defense cases involving the use of deadly force because of the fact pattern.  In that case the appellate court held that the defendant was entitled to SYG immunity where he and a friend were violently attacked by two individuals.  When the second man reached into his pocket the defendant believed he was reaching for a weapon and shot him dead.  The appellate court, in holding that the defendant was entitled to dismissal of the charges under SYG held that: (1) it is not necessary to give a warning before using self defense, and (2) that a citizen using deadly force need not see a weapon on the other individual so long as  a reasonably prudent person in those same circumstances and with the same knowledge of the defendant would have been justified in believing that, and therefore use that degree of force.

Chapter 11 HB 89 (Florida House Bill 89) passed into law in 2014 appears to have caused the following changes to self defense law:   (1) you can only threaten to use “deadly force” if the unlawful conduct you are attempting to prevent would allow you to actually use “deadly force”.  Otherwise, the most you can threaten is “non-deadly force”.   (2) Before using or threatening to use deadly force  – you must retreat (if you can do so in safety) if  you are not “in a place where you have a right to be”, or if you were involved in criminal conduct at the time self defense arose.

Thursday, July 10, 2014

Firearms in a Motorcycle saddlebag

A question about firearms and motorcycles:
by jon gutmacher

I was emailed a question that came up on a Facebook discussion on Florida Concealed Carry.  I took exception to the opinion by another attorney as to the validity of having a firearm "securely encased" in an affixed saddlebag.   From my standpoint -- which means my opinion -- the law is clear on the point, and allows it as "securely encased".  This was my analysis:

  • I totally disagree. Doughty v. State, 979 So. 2d 1048 (Fla 4DCA 2008), simply held that a fanny pack with a firearm inside while riding on a motorcycle was unlawful under 790.25(5) because it was "on the person" which is prohibited by that section, except as to CWP holders. Since a motorcycle is a "conveyance" per law -- it's "interior" would be anything other than it's "exterior", otherwise the only place you could store something "securely encased" would be inside the gas tank -- which is absurd, and would render the section meaningless to motorcycles, and exclude them without rational basis. Common sense and the Constitution would require that any compartments physically attached to a motorcycle such as within affixed saddlebags -- would become its "interior" as to their storage area. Of course, this would be different if the saddlebags were not mounted to the motorcycle. One warning -- a regular pedal bike -- is not a "conveyance", thus, a saddlebag on a pedal bike will always be prohibited unless with a CWP. Jon H. Gutmacher -- author -- Florida Firearms -- Law, Use & Ownership.
Hope that helps.

Tuesday, June 17, 2014

Abramski v. United States -- US Supreme Court 2014

There's been a lot of chatter on the June 16th 2014 decision of the United States Supreme Court in Abramski v. United States.   In a nutshell (probably an apt heading) -- Abramski was a former cop who purchased a handgun for his uncle.  The uncle reimbursed him for the cost of the gun,  and although both Abramski and his uncle were not prohibited from gun ownership, and there really wasn't any unlawful purpose in mind -- the feds prosecuted Abramski on the basis that he listed himself as the true purchaser on the federal Form 4473 when he bought the gun from a dealer.   Now,  if you've read my book -- you already figured out this was a big "no no" in federal land, and is considered a "straw purchase".  It may be stupid -- but the law is pretty damn clear.  You can't buy a gun for someone else -- unless it's a gift,  the person you're giving it to is not prohibited, and they reside in the same state you do.  And so -- the inevitable happened once some pen pusher decided the case was worthy of prosecution, and Abramski was convicted of a federal felony.  Probably the only question that anyone should be asking is why the hell the feds even bothered?  This was no big deal, and hardly worth the trouble. Lots of more important cases out there to spend your time on.  But again -- that's the feds.  No telling what the hell they'll do -- especially with Obama as President, and Eric Holder (uhhh!) as Attorney General.   Any wonder?

So . . . Abramski raises lots of interesting Second Amendment arguments -- many with substantial merit. And quite frankly,  he had four justices on his side.  But,  the argument that won -- and I guess makes sense even if nonsense in this case is:   If Abramski can say he's the actual purchaser -- why couldn't any person with criminal intent purchase through a friend -- and thereby thwart (or at least somewhat delay) finding the real owner if the gun is involved in a crime, and the government is trying to trace it?

Anyway -- that's the short stick on the case.  I don't think it's really news because the law was clear -- although it is a big disappointment for the expansion of the Second Amendment into an interpretation that suits "common sense" rather than just stupid laws.  For now -- stupid wins.  Watch your back -- and read my book.

Whatever.   That's my really quick report.  Have a good one.

Monday, November 25, 2013

A Critical Case on Self Defense Soon Going to Florida Supreme Court

What may happen to the burden of proof in immunity hearings in Florida in 2014?
copyright 2013 by jon gutmacher

On November 1, 2013,  the Fifth District Court of Appeal decided what may become the most critical self defense case in Florida history,  Bretherick v. State, 38 Fla.L.Weekly D2276 (Fla. 5DCA 2013). The case is interesting both factually and legally -- and raises an issue I have been arguing and lecturing about for years -- that the burden of proof in an immunity hearing MUST be on the government to give the immunity statute any effectiveness.  Without it -- the statute is generally worthless except in clear situations where the presumptions in s. 776.013 kick in for home defense or defense of an occupied conveyance. There are also a few things the attorneys and court seemed to have missed -- but we'll get into that in a minute:

The facts of the case,  from reading the Opinion of the Court, go like this:  The Bretherick family is on vacation in Florida heading to Disney on a major road -- obviously not I-4.  The vehicle includes the defendant, his sister, his mother, and father.  The father is driving when a pickup truck approaches rapidly from behind them, almost side swipes them as it goes by,  immediately cuts in front of them slamming on the brakes, and comes to a full stop blocking their forward progress.  There is no other traffic on the road at that time.  The driver of the truck gets out, approaching them on foot, and the defendant's father holds up a holstered handgun to show he is armed.  The truck driver  thinks better of what he is doing, and returns to his truck -- but does not move it.   The defendant gets out of the rear passenger seat with a handgun,  approaches the parked truck with gun pointed, and orders the driver to move his truck or he will shoot him.  In the meantime,  other drivers have seen the incident and called 911, as well as members of the Bretherick family.  Also,  both the women in the Bretherick family have taken refuge in a ditch off the side of the road for protection, as they fear for their lives. Police arrive, and arrest the defendant (not the truck driver!) for aggravated assault -- a three year mandatory minimum felony.  The defendant insists that the driver of the truck told him he was armed with a gun.  The driver of the truck tells the police he wasn't, and that he thought the defendant told him that "if he moved his truck he'd be shot".

The defendant's attorney files a motion to dismiss based on "Stand Your Ground" immunity, and at the hearing, among other things,  argues that the burden of proof during the motion should be on the government, and not the defendant.   This is overruled based on prior case law.   The evidence at the hearing is conflicting on some issues (not elaborated by the appellate court) except it is made clear that the trial judge did not believe that the driver of the truck told the defendant he was armed.  Had the burden been on the State -- the appellate court stated that the trial judge "may have" ruled the other way.   The defendant loses the hearing, and immediately appeals the ruling to the Fifth District Court of Appeal by a method of review called "prohibition". "Prohibition" is a remedy of  limited application that allows appellate review prior to a plea or verdict in only a very narrow class of circumstances.

The Fifth District agrees with the defendant -- that prohibition is a proper method to review the denial of a motion to dismiss based on "Stand Your Ground" immunity,  but also decides that it is bound by earlier precedent of the Florida Supreme Court that held that the burden of proof in a "Stand Your Ground" immunity hearing is on the defendant,  not the government.  Dennis v. State, 51 So.3d 456 (Fla. 2010).   In that case,  the Florida Supreme Court was really deciding an entirely different issue as to whether a pretrial evidentiary hearing was required at all when a "Stand Your Ground" immunity issue was raised.  However, in the Dennis case, the question concerning the "burden of proof" was never really argued -- but because the Florida Supreme Court "approved" the lower court's method of how the hearing should be conducted -- that method became the law of the State of Florida, and (as I stated in my book) until changed by the Florida Supreme Court -- must be followed in all such cases.  The Fifth District also decides that inasmuch as the truck driver had retreated to his vehicle -- there was no longer an "imminent threat" to the safety of the defendant or his family, and the defendant's "use of force" in pointing the firearm at the truck driver was "objectively unreasonable".  For that reason the Fifth District affirms the denial of the motion to dismiss.   However . . .  this is where it gets interesting . . .

Associate Judge Schumann writes a concurring opinion in the case that the rest of the Fifth District is sympathetic to.  The concurring opinion argues that the failure to put the burden of proof on the government in a "Stand Your Ground" hearing basically negates the immunity protections of the statue, and cites cases from two other states that support that argument.  Based on this excellent concurring opinion,  the Fifth District "certifies" the question of who should have the burden of proof to the Florida Supreme Court -- so that the issue can finally be directly decided.

Now, why is this so important?

Well . . . "immunity" is supposed to spare a person from having to defend themself against a criminal charge.  However,  if a defendant is the one who has the burden of proof -- then he or she is not only forced into hiring or obtaining legal counsel -- but the attorney will be forced to use extensive time and resources preparing for any "Stand Your Ground" hearing in order to not only show entitlement to the immunity -- but also to be prepared to rebut and overcome any contrary evidence the State might offer.  It significantly intensifies and extends the entire judicial process, and can bankrupt most average individuals.  Just think of some of the hearings during the Zimmerman case on the admissibility of expert testimony -- and you get a rough idea how extensive and expensive this can become.

Likewise,  in any other circumstance where a defendant is raising an immunity issue -- the State normally has the burden of proving that immunity is not applicable.  (ie: "Kastigar" hearings)  In fact, in any motion to suppress a confession or evidence -- the State has the burden of proof.  So, why make an exception where the Florida Legislature wrote the statute to prevent even an "arrest" if there was a legitimate issue regarding "Stand Your Ground" immunity?   That's the question nobody has really addressed in the Florida courts so far . . . at least until the concurring opinion in the Bretherick case came along.

But . . . let's digress a little to my first paragraph where I stated that perhaps the court and attorneys missed an important issue in this case.  What did they possibly miss?

Well . . . the Fifth District held that it was "objectively unreasonable" for the defendant to believe that it was necessary to approach the truck with his gun drawn in order to defend himself and his family once the pickup driver retreated, as there was "no longer an imminent threat".  Therefore,  the defendant "could not justify his use of force".

Is that true,  you ask?

Well . . .  since the appellate court always has the last word --  disagreeing probably won't do us much good . . . unless we first present the issue to them in a way they can understand it.  And, since I have the training to know they are wrong -- here's what I think everyone missed:

While the defendant could certainly have stayed in his vehicle, or sought shelter until the police arrived . . . he didn't know when that would be.  It could have been two minutes, or forty minutes. Nobody really knew.  Like the Zimmerman case -- it probably would have been more intelligent for him to take cover, and wait.   He had a firearm -- and it appears that his father had one, as well.  But, he didn't take the safe route -- he didn't wait it out.   And even though the appellate court felt he and his family were out of imminent danger -- they were dead wrong!

Why?

Well . . . he was still faced with an individual who had acted in an outrageous and threatening manner.  He did not know if the truck driver was armed, and in this day and age he could reasonably assume that he was.  Plus, even though the truck driver had retreated back to his vehicle -- he didn't try to leave after the retreat.  He was still blocking the defendant's car.  He could have been retreating to his vehicle to obtain a firearm, or reach cover for a better firing position.  (Another reason it was not real smart to approach him)   But, he hadn't disengaged!  He never tried to drive off!  He was still technically the "aggressor".

Likewise . . . the appellate and lower court made an incorrect finding that the defendant had used "force" in ordering the truck driver to move.  In fact -- no "force" was used at all, and certainly no "deadly force".  There was merely a "conditional threat" to use force at some point in the future if the truck driver did not stop illegally blocking the way.

I guess you could argue that the defendant and his family could return to their vehicle, and drive around the truck.   However,  they were waiting to be rescued by the police.  Likewise, the women had taken shelter, and the defendant was doing his best to try to defend them by taking actions he thought might work.   Certainly,  if the family got back in their vehicle, and drove off -- now the truck driver would be BEHIND them, and in a better position to take a shot if he was armed -- plus the entire family would have given up "cover", and would now become exposed targets.  So too,  the defendant claimed that the truck driver told him he had a gun when the defendant approached his truck.

Would anyone in their right mind approach a driver who had acted the way the truck driver had unless they were armed with a firearm?  Would any police officer in their right mind approach without his or her firearm drawn?

The answer to the question is obvious.  And this is an argument that should have been made to the appellate and trial court (probably through an expert witness) so they would have understood that there was no "use of force",   but only the "threat" of using force.  More importantly -- even if the courts could somehow equate the threat with a "use" of force -- they would understand that it would have been objectively "unreasonable" and possibly suicidal for the defendant to approach the truck driver --  UNLESS he was armed!  No rational person (except maybe for a judge) would approach a possibly armed nut case in such a situation, being less than fully armed.  In fact -- even if the truck driver had not committed a felony by his actions (and the appellate court found he did not) -- he had still committed at least a "breach of the peace" that justified a reasonable fear of imminent death or great bodily harm in most people who watch the news around here.  The nut cases that roam the streets and roads of this country and State are truly dangerous!

So . . . hopefully, these last few paragraphs are not just "teaching points" for those reading this article -- but maybe can be used (if filtered back) for everyone involved in the case.  And the corollary to that is that had the defendant taken the "safe route" rather than the "brave route" -- he wouldn't be in this situation, in the first place.  But instead,  he's the guy facing the mandatory prison sentence, rather than the guy who really deserves it!!!  Scum bags lie!  Then it's your word against the scum bag -- and lots of judges don't like guns!

Lesson learned?




Thursday, October 17, 2013

A Closer Look at the Marissa Alexander Case

If you have been paying attention to the news, you probably know the Marissa Alexander case was reversed by the First District Court of Appeal  on September 26, 2013.  [Alexander v. State, 38 Fla. L. Weekly D2067 (Fla. 1DCA 2013)].   This was the case where a woman in Jacksonville was sentenced to a twenty year mandatory jail sentence for firing a "warning shot".    Initial reaction from media, and just about everybody else was that this was a total travesty.  After reading the appellate court opinion -- I'm not all that sure -- although I will agree that twenty "mandatory" years is absurd, draconian, unnecessary, and disgraceful.  Of course, as you can probably tell, I'm not a big fan of mandatory sentences (except in first degree murder cases).   However,  let's take a quick look at this case.

According to the trial judge,  he denied immunity because Alexander shot directly at her estranged husband while he was standing still, and had both hands raised in the air.  In other words -- it looked more like a "miss" than a warning shot.  To make it worse,  the home was not hers or where she was living, but was the husband's,  and while she claimed she only retrieved a firearm from her vehicle because she could not get the garage door open to leave -- the evidence tended to show the garage door was working fine.  Assuming this wasn't enough -- there was also evidence that Alexander had committed previous and subsequent acts of violence against the estranged husband without justification.  All this apparently came out on the immunity motion, as well as in the actual trial -- although the evidence was conflicting.

However,  the appellate court reversed the guilty verdict because the jury instructions "shifted the burden of proof" to the defendant by requiring her to prove she was resisting an attempted aggravated battery, rather than requiring the State to prove the case against self defense.  Of course,  the burden of proof was always on the prosecution -- not the defense -- and part of that burden was to "disprove" the self defense assertion beyond every reasonable doubt.  Not the other way around.

So, Marissa Alexander is gonna get a second bite at the apple, and assuming the evidence really is how the trial judge viewed it -- that two year plea  bargain that was offered doesn't seem all that bad.  While I'm not in favor of mandatory sentences -- still -- a jail sentence tailored to the individual and the crime is perfectly OK as far as I'm concerned.    Only time will tell how this case ultimately ends.