Friday, June 24, 2016

Answers to another email (I get lots of em)


Questions with answers following:


Question:  I am wondering if you might be so kind to shed some light on 3 questions ;

1. I live in a condo with other neighbor entry doors close by - if I answer my door and DO NOT exit my doorway, can I keep my firearm on my side visible because I am still in my home?

ANSWER:  as long as not done in a threatening manner,  therefore it might be better that the gun was kept behind you.

2. I got the impression from your book that I could take my firearm out briefly to show, say a friend for a moment or 2. What I mean in detail is; can I remove my firearm from my holster to briefly show it, in my hand? Of course common sense would prevail - not in a public place or with people nearby to cause unwanted fear. But if I took it out to show a friend and someone unaware saw me and called the police - would I have a problem? 

ANSWER:  the statute allows it, but there have been reports of folks arrested for this by stupid cops.  I therefore advise against it except within your home, on the range, or some other suitable place.

3. If a dog is actually biting me - am I legal to shoot the dog ? 

ANSWER:  maybe.  A dog bite can be pretty serious, and it would depend on the nature of the attack.  You'd probably want to shoot before it bit you if it was obviously about to attack and could so some real damage.  But, again, it depends on the dog.  I don't think you'd want to shoot a Yorkie.  Quite frankly a good kick as it approaches can do wonders -- I've done it.  Pepper spray works better than the gun in many instances, especially to prevent an attack -- which is why I often carry it when walking my dog -- plus it's cheap, and very easy to carry in any type clothing.  Remember,  it is VERY important to have a non-lethal weapon to use in many instances where deadly force would be illegal or marginal.

Is the NFA trust dead?

      On July 13, 2016,  ATF Rule 41-F does into effect, and the result of this eliminates the need for a Chief Law Enforcement approval on all NFA (National Firearms Act) purchases, replacing it with a notification requirement to the Chief Law Enforcement officer, instead.  You still need a pre-approval from ATF to take possession of any NFA firearm, do the form, pay the fee, and a few other requirements that are no big deal.

      So,  do you really need an NFA trust after July 12, 2016?

      Well . . .  maybe,  if you really want a trust for estate planning purposes.  In such a situation,  you will want a complex trust plan completed by an attorney who primarily does trust, estate, and probate work. There's a Florida board certification for that -- so,  I'd be looking for that guy or gal to do it.

     Of course,  individual ownership still will allow you to specify who gets the NFA firearms in a will.  If you own them -- having even a simple will with that specification would be a very good idea, otherwise it would go into probate, and that might cause issues.  Likewise,  whoever you designate in the will should not be a "prohibited person".   Again,  a consult with a good probate/estate lawyer might be helpful.

      Personally,  I think I'd rather have individual ownership now, rather than an NFA trust.  However, that means that I must be personally present for anyone else to handle it, or shoot it.  Remember,  possession of an NFA firearm (including silencers) is a ten year felony unless you have the tax stamp, or certain other exceptions and inclusions -- all of which are out of the scope of this article.

      What you do is your business.   Likewise,  you can still obtain an NFA firearm as a partnership, or corporation, etc .

     Hope this helps.

Wednesday, June 22, 2016

Needed law

I just got an email from a truck driver who wanted to know what would happen if he carried in his vehicle while on Disney property.   Legally -- he can do as he wishes if securely encased -- but if Disney found out -- on any of its over fifty square miles of roads and property -- he and his business could be trespassed.  Once that trespass warning is actually made -- coming on the property then becomes a criminal trespass,  and if armed,  a felony armed trespass.   Sucks, huh?

The answer to this is to enact a law  that states as follows:

Any person, not otherwise prohibited by law from possessing firearms, may lawfully possess securely encased weapons and firearms in a private conveyance on any roads or parking areas on public or private property where the public is permitted access, even if admission, fees, or other types of licensing are charged for that access so long as any such weapons or firearms are not in open view.  A person having a valid Concealed Weapons License may also possess such firearms or weapons on his or her person within the conveyance, out of open view. Should the conveyance be parked, and not occupied by a person 18 years of age or older, then the firearms and weapons shall be kept locked within the conveyance, and out of open view.  A vehicle with all doors locked, and all windows completely closed shall constitute compliance with this requirement, as would having the firearms or weapons locked inside the trunk, glove compartment, or within a metal container physically bolted to the inside of the conveyance.  However, this section does not permit possession of a firearm or weapon within any area restricted by federal law,  or upon any road or parking area within a jail or prison facility where there is restricted access by a gated entry point where such is manned or controlled remotely.  


Tuesday, June 21, 2016

Every Time there's a tragedy -- then what?

Every Time There's a Tragedy . . .  then what?
by jon gutmacher

I was asked by the press today if I would like to go on air and answer some questions about the proposed legislation in the aftermath of the Orlando tragedy.  After a few seconds of thought I declined -- because it would take hours of thought to really come up with some valid answers.  But, here are a few "thoughts" which I will modify or expand upon as days go by on what I am thinking:

1.  Maybe anyone who is not an actual "citizen" should not be allowed to own or possess firearms, except they may rent firearms and ammo for use "on the premises" of such range or facility.  That way, tourists can still have fun,  ranges can still make money, and private acreage that allows hunting can still do their thing.  I know we have "green card" residents -- but maybe they should become citizens first?

2.   The FBI and Homeland Security should be able to monitor social media to their heart's content, so long as anything they find is kept strictly confidential within these agencies and law enforcement, unless used in a court of law in a criminal case or deportation after being unsealed by the court upon a showing by the government of need and good cause.

3.  I also have no problem with criminal history checks on private sales BUT ONLY if  the FBI creates an adequately funded private call in system where a private person can call -- where that person has no obligation to keep records -- where there is no cost to the person calling -- and where the FBI (NICS) either OK's the sale based on current records -- or denies it -- and only the government keeps records.  Otherwise, it's a joke and a trap for the unwary -- especially as there is no current means for a private individual to sell a gun and obtain a records check unless he does so thru a gun dealer who take the gun into inventory, and then handles it as a sale by the dealer.

4.  I have no problem with a "terrorist watch list" as long as it is strictly confidential within law enforcement, and used only to track possible terrorist threats.  It should not be used for ordinary criminal enterprise unless directly connected to terrorism or its monitary support.  Whether we need it expanded to deny firearm purchases or more -- that requires hours of thought, study, and discussion.

5.  There are some serious questions about mental health and guns.  What the discussion and answers should be -- again -- require hours of thought, study, and discussion.

6.   Secret Lists:   Any "no fly" ;   "no guns" ;   no "whatever" lists -- should be kept strictly confidential from the public.  However,  if they actually effect the rights of an individual -- the government should be required to put that individual on notice they are on the list, and that individual should have a continuing availability to challenge their being on that list in a fast, and simple administrative procedure where the burden of proof is on the government.  What the standard of proof should be -- I'm not sure.  But, anytime you need to prove you are innocent -- especially when the charges are mostly speculation and innuendo -- you're gonna lose.  The burden -- should always be on the government.  If they don't have the proof -- then let them monitor you, but not affect your actual rights and actions.

So . . .   that's it for now for me.   Probably some stuff you'll agree with.  Some you won't.  Some you're not sure of.  All of -- which need more work and thought.

CAR BURGLARIES IN FLORIDA -- SOME THOUGHTS

CAR BURGLARIES IN FLORIDA -- SOME THOUGHTS
copyright by jon gutmacher 2016


Good email question received on stopping a car burglary.  Here's the question and my response:

QUESTION:  A couple sessions ago the subject of using deadly force against a person
burglarizing a locked truck or attempting theft of the truck arose.
Florida seems to classify burglary as a forcible felony. While it would
appear that the use of deadly force is justified against a person in the
commission of a forcible felony, or to prevent / stop a forcible
felony. It also seems that in your 8th edition of "Florida Firearms"
(page starting 315) suggests that the use of deadly force in this case
would probably be considered excessive. The example given on page 315
is very similar to the scenario which raised the question.

As you might well understand, since there were a number of people
present, a number of points of view were considered. Do you have some
additional perspective on this situation which you would care to share
with us?



RESPONSE:

Sure,  a burglary  is a forcible felony.  An "attempted burglary" is not,  but the statute still allows you to use reasonable force to stop or prevent a forcible felony.  Preventing falls into the "attempted" burglary part.  However . . .  and this is the big "however" --  the "use" of deadly force must always be "reasonable" and "necessary".  Generally, that means an imminent threat to life or great bodily harm.  In some rare cases it means the crime was serious enough, even without imminent threat to life or great bodily harm -- that deadly force was required to stop it, or stop the perpetrator from escaping. 
Examples of death or gbh:  rape; murder; armed robbery; kidnapping; home invasion.
Examples of serious not in the above categories:  lots of "maybe's", and fact specific such that one jury might say "fine", and another "guilty".
However . . .  we get back to "use" of "deadly force".  Display is the "use" of a deadly weapon -- but not the "use" of deadly force.  It is (or should) always be "reasonable" when attempting to stop or prevent a "forcible felony".   But, pulling the trigger without adding a reasonable fear of imminent death or great bodily harm -- will almost always be "excessive force" -- and in that situation, excessive force will either be manslaughter or aggravated battery or aggravated assault  (the later if you're a lousy shot). 
What if the perpetrator tries to take your gun after you have it out?
Well . . .  again . . .  that's a question up for grabs and interpretation,  but my legal opinion is that you now have an imminent death or great bodily harm situation if he gets it.  But,  if you have even the slightest chance of doing so -- back away and issue a loud verbal warning as much as possible for legal reasons more than factual.  One step back will change your legal position in court. More are better.  A loud verbal warning ("Stop, or I'll shoot!) is a very good idea.

What about shooting if it seems he's not deterred and will take the vehicle?
Answer:  I don't know.

You now have a situation where deadly force seems to be the only way (ie "necessary") to stop the crime.  Is it "reasonable"?  

Well,  if it's a two hundred dollar junk car -- no.  If it's your only way to work, and you can't afford another -- and that's what you're gonna say to the jury:  "I killed him because otherwise he would have taken my car, and I'd miss work" -- think how that sounds, and pray you get me or someone like me on the jury.  Unfortunately,  what is "reasonable" to one person may not be reasonable to another.

copyright 2016 by jon gutmacher    --       www.floridafirearmslaw.com


Tuesday, June 14, 2016

A message to the FBI and Homeland Security about the Orlando massacre:

The Orlando Massacre --  what the government is doing wrong:

There are lots of things we don't know.  There are lots of things we probably need to do, and change -- and that includes what police and mental health officials can do where an individual is suspected of planning or espousing terrorist or other serious dangerous acts.  But -- there's one thing that should be crystal clear, that has evaded the policies and practices of both the FBI and Homeland Security.  Let me explain:

The FBI said they had investigated Omar Mateen three times in years before the Orlando massacre for being a radical Islamist, but had found nothing  that would justify a legal response, and therefore they dropped it, and their surveillance.

To me,   that's a major  problem in surveillance and preventive  philosophy!

People don't just snap at once. They develop, and build to that over time. Over time, they become more radicalized. Over time, they eventually begin to plan. Only then -- do they act!  In other words, whatever you see now that alerts you -- it's not gonna get better.  It all TAKES TIME!

So, while we don't have all the answers now -- there is one thing the FBI and Homeland Security need to take out of this latest tragedy: Once they have somebody on the radar screen -- they need to keep that person on the radar screen with the knowledge that sooner or later . . . if any of their initial suspicions were correct -- the suspect's hate and instability will grow and develop . . . and their planning will become more real and precise. Whether that be nut job or terrorist -- that's how it works.  

I guess the answer the government would give is:  we don't have the resources!   And, maybe that's true.  But, with so many brilliant minds out in Silicon Valley and elsewhere -- you'd think somebody could come up with something.   And by the way -- just like Trump says:  maybe if the folks inside did have guns, Mateen could have been stopped earlier?  Restricting CWL holders from carrying almost anywhere -- makes no sense!   It isn't the CWL holders we have to be afraid of.

CWL inside a nightclub???

I received an email today from a reader who had an argument with a friend.  Both are NRA instructors.  The other guy told my reader you could legally carry inside a nightclub.  My guy balked, and said "no way" -- but he emailed me just to make sure.  

For most of us, especially those who've read my book  -- the answer is pretty simple:   No Frickin Way!!!   

Now,  that's not because it should be "no frickin way"  -- because it's my firm belief that if you have a CWL -- you should be able to carry anywhere.  (yeah -- some exceptions might apply).  But, the law is the law . . .  right?

However,  there's more to the issue involved than meets the eye.  The section of the statute in 790.06 says your CWL "does not authorize" you to carry in "any portion of an establishment licensed to dispense alcoholic beverages for consumption on the premises, which portion of the establishment is primarily devoted to such purpose."

 So,  if you're in a "portion" of the establishment not "primarily devoted" to drinking or serving alcohol -- who knows -- maybe you're legal?  Obviously,  that's an intensive factual determination that will vary club-to-club.  However,  the general rule will always be "no" -- and the safe rule will always be "no".   But,  if you're truly curious -- here's my answer to the email:

The problem has always been people who interpret the law the way they want it to be, rather than the way it actually is.  They haven't the legal training, the law enforcement practical experience,  or the courtroom experience to understand what will occur in the real world. It's like all the stupid Facebook videos where somebody is arguing with a cop and refusing to obey instructions -- because the cop "can't do that".  Yeah -- until they get arrested, or get their head cracked in, or worse.  It's pure arrogance.  However,  and  true -- there is always an "argument" CWL carry might be legal -- but the chance of actual success -- is what drives reality, and legal advice.  The argument is the "dance floor" is not for the primary purpose of serving/drinking alcohol.   But then -- is there another portion of the club primarily devoted to food service?  Either way,  you still have a "test case",  and the arrest would lead to a suspension of your CWL until and unless resolved in your favor.  Plus,  my guess is that there would always be an arrest under those circumstances.  The question then becomes:   is a night in jail, a criminal record no matter what the outcome, bail, attorney fees,  suspension of your CWL, and the unanswered issue in your "test case" really worth it???
 
So, yeah.   Maybe he's right.  But,  at this point the issue is likely heavily weighted against him.  An arrest is highly probable.  Being arrested sucks.  And -- my guess is that he doesn't have the time or money to take it as far as it would need to go to resolve it.  That's what your acquaintance is missing.