Thursday, January 19, 2017

How good is Senate Bill 128 -- burden of proof in immunity

How good is SB 128?
copyright 2017 by jon gutmacher **

       One of the major issues in Florida self defense law has been the burden of proof in an immunity hearing.  In other words – if you are charged with a crime for using self defense – you have the opportunity to challenge the prosecution under the immunity laws in Chapter 776 of the Florida statutes, and if successful, have the charges dismissed.  Since all other types of immunity hearings require the government to prove you are “not entitled to immunity” by a preponderance of the evidence (ie: more than 50%) – why is self defense immunity the exception – as in such hearings the defendant is the one who has the “burden of proof” to establish entitlement to immunity by a preponderance of the evidence?   Something very difficult to do without your attorney first spending months gathering evidence, taking depositions, and doing all sorts of other things while you continue to sweat bullets being on bond, having bail restrictions on travel, having to attend multiple court hearings, missing work, and otherwise having the stigma of facing serious criminal charges.  Thus, for the past few years various bills have been introduced in the Legislature to change that – but so far – no good.

       Anyway – we now have a new bill filed to correct the situation, Senate bill 128 – but is it any good, and what are its chances of passing???

       Well, I’ve attached the bill underneath this explanation for you to take a look at, and my guess is that it will not pass – at least not in its present format.   Plus, it has the usual drafting problems.

      The first problem (section 4 is what is new, and what this is about) is that it requires the State to prove you’re not entitled to immunity “beyond a reasonable doubt”.  That is the law for a jury trial – but in a pretrial motion – that would be a complete, historic novelty – plus, totally unfair for the prosecution.  In any type of constitutional or immunity type hearing the burden, no matter who has it, has always been “by a preponderance of the evidence”.  Obviously, that is not going to be changed because of this bill.  So, to get it passed, there would have to be a major amendment of the language that sets the standard as putting the burden on the government by a “preponderance of the evidence”,  at a "pretrial" immunity hearing, and leaving “beyond a reasonable doubt” as the standard for trial.  This is a drafting issue that should have been resolved BEFORE the bill was filed – not after.

       Likewise, recent Florida case law has pointed out that the immunity question is just as important to civil cases.  For instance, if you’re sued by someone injured by your use of self defense.  Shouldn’t the same standard apply to a civil case?  Shouldn’t civil cases also be included?  In fact, since there is conflict between the appellate courts of this State on a very important issue – whether a finding of immunity in a criminal case or subsequent civil case is thereafter binding on any and all other civil cases that might arise (think about several persons injured in a self defense incident, and maybe even their family members  – each one of them sues you civilly, one at a time.  That would take years, and probably a few million to defend them all, besides all the stress and personal time it would take.  But, if you have been found immune in one – shouldn’t that immunity apply to all – otherwise what really is any civil immunity worth?

      So, the answer (to me) is that this bill is unrealistic in the standard of proof it seeks to impose on the prosecution, pretrial, and that needs to be amended for it to have any chance of passing.  Likewise, and maybe for a future bill – somebody needs to address the civil issue problem, as I understand that combining them might kill the chances for both.

      Anyway – here’s the main part of the statute in section (1) and the new bill wording in section (4):

Florida Senate - 2017 SB 128
By Senator Bradley
5-00200B-17 2017128__
Page 1 of 2
CODING: Words stricken are deletions; words underlined are additions.
1 A bill to be entitled
2 An act relating to self-defense immunity; amending s.
3 776.032, F.S.; requiring that the burden of proof in a
4 criminal prosecution be on the party seeking to
5 overcome the immunity claim under certain
6 circumstances; providing an effective date.
7
8 Be It Enacted by the Legislature of the State of Florida:
9
10 Section 1. Subsection (1) of section 776.032, Florida
11 Statutes, is republished, and subsection (4) is added to that
12 section, to read:
13 776.032 Immunity from criminal prosecution and civil action
14 for justifiable use or threatened use of force.—
15 (1) A person who uses or threatens to use force as
16 permitted in s. 776.012, s. 776.013, or s. 776.031 is justified
17 in such conduct and is immune from criminal prosecution and
18 civil action for the use or threatened use of such force by the
19 person, personal representative, or heirs of the person against
20 whom the force was used or threatened, unless the person against
21 whom force was used or threatened is a law enforcement officer,
22 as defined in s. 943.10(14), who was acting in the performance
23 of his or her official duties and the officer identified himself
24 or herself in accordance with any applicable law or the person
25 using or threatening to use force knew or reasonably should have
26 known that the person was a law enforcement officer. As used in
27 this subsection, the term “criminal prosecution” includes
28 arresting, detaining in custody, and charging or prosecuting the
29 defendant.
30 (4) In a criminal prosecution, once a prima facie claim of
31 self-defense immunity from criminal prosecution has been raised
32 by the defendant at a pretrial immunity hearing, the burden of
Florida Senate - 2017 SB 128
5-00200B-17 2017128__

** you may freely copy, download, or distribute this document for non-commercial purposes so long as you give full credit to my authorship.

Sunday, January 15, 2017

OK -- So . . . My book now has competition!

When I first started "Florida Firearms" almost 25 years ago – there was virtually nothing out there that explained Florida or Federal firearm laws, zero on weapons, and a maybe just a little bit on Florida self defense.  "Florida Firearms" changed all that – forever – and provided the first reliable source where instructors and law enforcement could go for an actual answer how all these laws worked, and what the "right" answers were.   Sure, there were lots of books on the practical side of self defense – most of them very good.  But, that didn't keep you out of legal trouble.  It didn't tell you about "mandatory" prison sentences.  It didn't explain all the nuances of legal carry, purchase restrictions, school zones, NFA issues, or all those other grey areas that nobody really had an answer for.  And, over the years – the book became a staple of those who really wanted to know how the law worked – and what they needed to be aware of.

Of course . . . there was resistance.  I remember such statements as "who are you to tell me what the laws are?"

Well . . . I was a former prosecutor and police legal advisor who had tried several homicide cases, handled hundreds of appeals including ones in the U.S. Supreme Court, served as a chairman of Florida Bar committees, and had been writing featured monthly columns regarding firearm issues in such publications as Florida Rod & Gun Trader, The Sportman's Gazette, Rods & Guns Magazine, and wrote for law enforcement.   I had also taken the time to become certified by the NRA as a firearms instructor, and Refuse to be a Victim instructor, and was one of the four primary organizers of the Florida "Freedom Rally" in Tallahassee in 1994 that was crucial to stopping a Florida assault weapons bill, and was the second largest rally ever held on the Capital steps up to that point.

As I got deeper into firearm issues, my practice also took on more and more of those cases.  I handled and successfully tried a number of second degree murder self defense cases, quite a few aggravated assault cases, and every type of case you can think of regarding concealed carry issues – from vehicles, boats, airports, seaports, hotels, hospitals, schools, military institutions – you name it – I handled it.  Plus, I was one of a very few attorneys who had extensive experience with BATFE, and also regulatory matters with the Florida Department of Agriculture.  I even did a few cases involving knives, some on ammunition, a couple on machine guns, several involving antique firearms, and around five federal NICS database corrections when the feds either got my client mixed up with somebody else, or the computer data was just wrong.

What I'm saying is that – not only was I writing the book – I was "living" the book.  And in between, I was answering tons of email questions on situations the book didn't cover – questions that were then researched, and eventually found their way into the book.  Which is one of the reasons why, after almost twenty four years – I continue to answer legal questions from my website – for free.

Likewise, my book is the only one on the market that is updated free on the web (at least twice yearly),  and is the only one that I know of that is updated in print at least once a year, so that the latest information is always available.  I work on it 365 days of the year, and it is a work of personal pride.

So, when you see another book being touted in a gun store, gun range, or CWL class, and it's about Florida law, go ask yourself: Where did that information really come from?  If you put my book and the other together and compare them – I think you'll know.  There's only one book out there that really explains the law in depth, and accurately  – and it's by the guy that handled, and researched all those cases – me.  It has the latest information.  It's backed by free updates.  And is the "cutting edge" of the law that everyone else follows.  "Florida Firearms – Law, Use & Ownership" – now in it's 9th edition.   The leading book of its kind in the nation.


Saturday, January 7, 2017

Question about what to do after non-deadly force incident

Opinion on what to do after non-deadly force situation:
copyright 2017 by jon gutmacher

I received an interesting email today that I thought was worth posting, including my response.  Hope this helps others --  and let me add that everyone should have self defense insurance if you carry any type of firearm or weapon, even non-deadly, and (shameless plug) really take the time to read and re-read the new chapters in the 9th edition on self defense.   Also,  there's a link on my website to CCW Safe -- what I consider to be the best of the three top self defense insurance plans out there.  The cost is extremely low, and the protection extremely high.   Anyway -- here's my question and answer:

Question:   

I have a question about what to do after the use of less-than-deadly force, like pepper spray (which is a part of my everyday carry equipment). After use, the first thing I would think is to get to a safe location and then to immediately call 911 and report the incident.  How about after that? Should I stay in that safe location until the police arrive?  Go back to the scene? Go home? What would be the best course of action to put me in the best possible position legally, and aid the police (in that order)?

Answer:

There are no fast rules for these things.  Pepper spray is definitely non-deadly force, and I fully support its use as a low level response to a reasonable imminent threat.  Your safety is the prime question -- and you must make a decision on that in the context of the moment and surroundings.  I would normally say that if you had to use pepper spray as a defense, that calling the police as soon as possible after is important.  There may be exceptions, but that would be the rule.  However, be very careful what you say.  "I was attacked and had to use pepper spray to defend myself".  If asked on more details aside from where, when, if there were any injuries, weapons, description or names of those involved, and your current location -- I would pass on saying "I'd rather not discuss that over the phone at this time".    If they send an officer  (doubtful unless the other individual made a report that "they were attacked") You must again be careful in what you say.  I've outlined that in the new 9th edition, and I really suggest you not only READ the three chapters on self defense -- but RE-READ them a few times, and even practice what I recommend.  Unless you mentally practice it -- it is doubtful you will be able to remember it when in a stress situation later on.

That's the best I can do on a pure "what if".

You may repost or share this as long as it is done in full,  and my authorship and copyright are acknowledged.  (ie  "this was from jon gutmacher's blog" -- is fine)
 


Saturday, December 24, 2016

Road rage forcible felony -- great example

I was just on Facebook, and saw the absolute "best" example of a road rage Florida aggravated assault I've ever seen.  Since I've handled many of these cases -- I highly recommend watching this video with the reminder that the individual who starts the road rage is feeding their own urge to get back at society, for whatever reason.  They'd love to call the cops on you, and get you arrested for something like this.  In this situation, if it happened -- the charge would stick -- you'd likely have a felony -- and kiss your guns goodbye!

https://www.facebook.com/actiongunsnews/videos/1552298941451963/

Thursday, December 22, 2016

9th edition of Florida Firearms book just released

Well . . .  the new 9th edition is finally out.  Started the rewrite in July, and finally finished it in November.  Then, all the pre-printing stuff took another month and a half.  Hard to believe how much work goes into a new edition.  But, I think the book will knock you over once you read it.  I honestly think I've answered just about every legal question anyone could ever think of  (other than hunting), and made it as plain and understandable as humanly possible.  Plus, the new index is vastly expanded and intuitive, and Massad Ayoob was kind enough to do a Foreward.  I'm only covering Georgia and Alabama besides Florida, and I also added a couple of chapters in the self defense area to expand on practical advice.  Looking forward to the inevitable feedback from readers.  Let me know what you think.


Saturday, October 29, 2016

Another bill for consideration in the 2017 Legislature amending F.S. 790.115

The 2017 Legislative session is less than three months away, and once the November elections are over legislators will begin to decide what new bills they will file, and what they will back or oppose.
I've suggested a few ideas that I think are sorely needed, and that also would have an excellent chance of getting passed in the upcoming session.  I've kept my suggestions away from ideas that I like, but I don't think will make it -- at least this year.   However,  Florida Statute 790.115 is a statute that is crying out for reform.  Here are my reasons for proposing this being amended, and my suggested changes:


PROPOSED AMENDMENT TO F.S. 790.115

WHY IS AN AMENDMENT NEEDED:

F.S. 790.115 restricts possession of firearms and other weapons on school property, however, there is an exception in subsection (2)(a)(3) that allows “securely encased” possession in a vehicle.  Unfortunately, the Legislature added to that paragraph a further exception that allowed school districts, on a piecemeal basis,  to pass written policies forbidding weapons in vehicles on the grounds of such schools regardless of need, and without any guidelines.

The section was likely directed at allowing school districts to curtail “students” from parking with weapons and firearms – but its language appears inclusive of “anybody”.  Plus, there are no guidelines on why a school should implement such a policy.   This has led to a severe hardship for many teachers, administrators, and parents dropping off and picking up students – especially if their drive is a long one in rural areas.  Moreover, it affects adults with CWL’s going to late night vocational schools, and adult education, and is a hardship to any of these individuals, as well as faculty and administrators working late hours.    Likewise, there is no exception when the school is used as a shelter during a declared emergency, or an exception that would allow those individuals who are qualified as armed security personnel under Chapter 493 to be hired to carry and protect on school grounds – especially private schools and church schools who are seeking this type of assistance, and don’t have access to assigned police officers.

The following amendment would cure all these problems, and still keep the original intent of the Legislature.  Current language that is eliminated is struck out, and new language I’ve suggested is underlined:

=================================================

A bill to be entitled:

An act related to the possession and display of firearms and weapons at schools and on school grounds.

Be it enacted by the Legislature of the State of Florida

Subsections (2)(a); (2)(a)(3); and (3),  of section 790.115
Florida Statutes, are amended, and subparagraph (2)(a)(4) is added,  to read:

790.115 Possessing or discharging weapons or firearms at a school-sponsored event or on school property prohibited; penalties; exceptions.—

(1) A person who exhibits any sword, sword cane, firearm, electric weapon or device, destructive device, or other weapon as defined in s. 790.001(13), including a razor blade, box cutter, or common pocketknife, except as authorized in support of school-sanctioned activities, in the presence of one or more persons in a rude, careless, angry, or threatening manner and not in lawful self-defense, at a school-sponsored event or on the grounds or facilities of any school, school bus, or school bus stop, or within 1,000 feet of the real property that comprises a public or private elementary school, middle school, or secondary school, during school hours or during the time of a sanctioned school activity, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. This subsection does not apply to the exhibition of a firearm or weapon on private real property within 1,000 feet of a school by the owner of such property or by a person whose presence on such property has been authorized, licensed, or invited by the owner.


(2)(a) A person shall not possess any firearm, electric weapon or device, destructive device, or other weapon as defined in s. 790.001(13), including a razor blade or box cutter, except as authorized in support of school-sanctioned activities, at a school-sponsored event or on the property of any school, school bus, or school bus stop; however, a person may carry a firearms or other weapons:

1. In a case to a firearms program, class or function which has been approved in advance by the principal or chief administrative officer of the school as a program or class to which firearms could be carried;


2. In a case to a career center having a firearms training range; or

3.  In a vehicle pursuant to s. 790.25(5); except that school districts may adopt written and published policies that waive the exception in this subparagraph for purposes of student and campus parking privileges  any firearm, ammunition, or other weapon shall be placed out of sight, and if the vehicle is unattended all doors shall be locked, and all windows and other openings that provide access to the interior of the vehicle for a driver or passenger shall be fully closed.  Furthermore, except for students 21 years of age or older, or those with a valid concealed weapons license, a school district may adopt written and published policies that waive the exception in this subparagraph for purposes of student parking privileges.

For the purposes of this section, “school” means any preschool, elementary school, middle school, junior high school, secondary school, career center, or postsecondary school, whether public or nonpublic.

4. Pursuant to s.  790.01(3)(a) on the grounds or within any school being used in whole or part, as a shelter.

(b) A person who willfully and knowingly possesses any electric weapon or device, destructive device, or other weapon as defined in s. 790.001(13), including a razor blade or box cutter, except as authorized in support of school-sanctioned activities, in violation of this subsection commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(c)1. A person who willfully and knowingly possesses any firearm in violation of this subsection commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

2. A person who stores or leaves a loaded firearm within the reach or easy access of a minor who obtains the firearm and commits a violation of subparagraph 1. commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083; except that this does not apply if the firearm was stored or left in a securely locked box or container or in a location which a reasonable person would have believed to be secure, or was securely locked with a firearm-mounted push-button combination lock or a trigger lock; if the minor obtains the firearm as a result of an unlawful entry by any person; or to members of the Armed Forces, National Guard, or State Militia, or to police or other law enforcement officers, with respect to firearm possession by a minor which occurs during or incidental to the performance of their official duties.

(d) A person who discharges any weapon or firearm while in violation of paragraph (a), unless discharged for lawful defense of himself or herself or another or for a lawful purpose, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(e) The penalties of this subsection shall not apply to persons licensed under s. 790.06. Persons licensed under s. 790.06 shall be punished as provided in s. 790.06(12), except that a licenseholder who unlawfully discharges a weapon or firearm on school property as prohibited by this subsection commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.


(3) This section does not apply to any law enforcement officer as defined in s. 943.10(1), (2), (3), (4), (6), (7), (8), (9), or (14); any person licensed pursuant to Chapter 493 Florida Statutes, who is a valid Class K firearms instructor, or those other persons who pursuant to that Chapter are authorized to bear a firearm pursuant to s.  493.6115, while employed or volunteering at or on the grounds of a private school.
.

(4) Notwithstanding s. 985.24, s. 985.245, or s. 985.25(1), any minor under 18 years of age who is charged under this section with possessing or discharging a firearm on school property shall be detained in secure detention, unless the state attorney authorizes the release of the minor, and shall be given a probable cause hearing within 24 hours after being taken into custody. At the hearing, the court may order that the minor continue to be held in secure detention for a period of 21 days, during which time the minor shall receive medical, psychiatric, psychological, or substance abuse examinations pursuant to s. 985.18, and a written report shall be completed.

This Act shall take effect upon . . . .

{I have not included anything about “armed volunteers” or permitting a CWL to carry concealed on the grounds of a school as these are issues that would involve more controversy with the Legislature, and are less likely to pass.  However, I think both of those issues should be addressed by the Legislature in the future.}

Thursday, October 20, 2016

Suggested change to fix Florida self defense statutes

I wrote a letter to Florida Senator David Simmons,  the original author of Florida's Stand Your Ground law, with a suggestion how to fix the substantial drafting changes made in 2014 that totally screwed up Florida self defense laws.  While I'd really like to see the pre-2014 laws reinstated as written,  this would at least fix the current problems, and be consistent with the reason the Legislature made changes in 2014, in the first place.  If you agree -- a letter to Senator Simmons might be helpful.  I understand it is something he will be seriously considering in December.

PROPOSED AMENDMENT TO F.S. 776.012 & 776.031:


WHY THESE SECTIONS NEED CHANGE:

In 2014 the Legislature amended F.S. 776.012; 776.013; and 776.032 to include “threats” on the supposition that “threats” were not then covered under these sections, and only the actual “use” of deadly or non-deadly force was covered.  However, the amendments were so worded as to cause serious and substantial problems for Florida citizens.

Why?

Because the amended wording now states that any “threat” of deadly force – even a simple verbal one – cannot be made in a non-deadly force situation, even if totally reasonable.

That means in any instance where a person is trying to stop a crime, or prevent injury to themself or others where the crime is less than a “forcible felony” – even as a pure bluff, they can’t even say they have a gun, or do anything else that might be interpreted as a “threat” of deadly force – even if totally reasonable. 

This is not only contrary to all prior case law and the common law of Florida , but is contrary to the laws of almost all other states.  Since colonial times it has been lawful to threaten deadly force, even in a non-deadly force situation, as long as the threat is reasonable!  If a threat is reasonable – how can we allow that to now be unlawful?

THE CURE FOR THE PROBLEM:

The cure is a rather incredibly simple amendment to the wording of the current affected statutes as I set forth here with added words in bold italics, and those struck having a line thru them.  Those simple four words change everything back to allow your actions to be judged on whether your conduct is reasonable, or not:

Florida Statute 776.012:
(1) A person is justified in using [non-deadly force] or  threatening to use [any] force, except deadly force   against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force.

(2) A person is justified in using or threatening to use  deadly force if he or she reasonably believes that using or threatening to use  such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony. A person who uses or threatens to use  deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the  deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.
----------------------------------------------------------------------------------------
* The words in blue are ones I would also omit, to bring the text back to pre-2014, as was no need to complicate the right of self defense caused by these words that were added in 2014.  However, I doubt the Legislature will agree.
---------------------------------------------------------------------------------------------------------------
Florida Statute 776.031: Use or threatened use of force in defense of property:

(1) A person is justified in using [non-deadly force] or threatening to use [any] force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the other’s trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force.

(2) A person is justified in using or threatening to use  deadly force only if he or she reasonably believes that such conduct is necessary to prevent the imminent commission of a forcible felony. A person who uses or threatens to use  deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.

--------------------------------------------------------------------------------------------------------------
Senator Simmons may be politely and respectfully contacted at his legislative office at:

Senator David Simmons
220 Crown Oak Centre Drive
Longwood, FL 32750