Thursday, January 30, 2014

The free February update now available for download on website

In case you're wondering what happened to the January 2014 free update to the book -- it took a little while longer than I expected -- and is now the "February 2014" update,  and is currently available for download from my website.   The update includes some very important case law that I've been explaining in the book for years -- that now confirms my interpretations.   Make sure you download it, even if you have the 2014 version of the book.  These cases are very, very recent!

Friday, December 20, 2013

Change in the law on "securely encased" for college campus parking

Let's all give a word of thanks to Florida Carry, Inc -- that sponsored the recent case of Florida Carry Inc. v. University of North Florida,  38 Fla. L. Weekly D2592 (Fla. 1DCA 2013), and their attorneys (Eric J. Friday, Lyman T. Fletcher, and Michael R. Phillips from Jacksonville), for a really important en banc decision from the First District Court of Appeal.  (en banc means the whole court -- not just the normal three judge panel).   In that case,  on December 10, 2013,  the First District held that post-secondary schools  (college, university) do not have the authority to restrict "securely encased" firearms within a vehicle on a college or university campus.   Thus -- despite any school regulations to the contrary -- it is now totally lawful to have a securely encased firearm in your vehicle -- parked or occupied -- on the grounds of a college or university in Florida.

Be warned -- this does not change the law as applied to "normal" schools such as an elementary, middle, or high school.  In that situation,  the School Board (not the local school -- only the School Board) may pass a "written and published" regulation that forbids possession in a vehicle on school property.  Thus,  if you see a warning sign when you pull up to a school that says something like "no firearms in vehicles" -- it might be wise not to have a firearm in the vehicle, even if securely encased.   [I actually believe there are several theories why this restriction is not correct, and can be gotten around -- but I'd rather pass on making those known -- since the idea isn't to make you a "test case", but is to keep you out of trouble with the law].

There's also a crack in the way things work with a private college, etc.  In that case, since they are not government funded,  they do not fall within the preemption law, and since any "school" covered in 790.115 is exempted from the parking lot law -- they can technically ban firearms from vehicles on their property, and discipline, suspend, or future trespass anyone who disobeys.   However -- they can't make it a crime.

By the way -- joining Florida Carry isn't a bad idea, and I encourage it.  They are the most pro-active organization in Florida that actually litigates important pro-gun issues.  Unfortunately,  they hate my guts since I'm not in favor of open carry, and therefore they'll have zero to do with me.  I think that's a bit of narrow thinking -- but nothing I haven't experienced before with other organizations.

Wednesday, December 11, 2013

CWP carry on school property in a vehicle

Can you conceal carry within a vehicle with a CWP at a school?

I received an email today from a reader who has the book, and saw an opinion that seemed contrary to mine on another attorney's website.

The other attorney did a thoughtful analysis -- and might be correct -- but to do so he's asking for a "test case" -- because in today's environment -- if a police officer finds you with a firearm on your person in a vehicle on school grounds -- CWP notwithstanding -- I think you're in for a problem.

If you're wondering why -- here's my analysis:    Florida law under 790.06(12) does not exclude carry on school "grounds" but does at a school "facility" or administration building.  Since "facility" is not defined, it leaves this as a "grey area" -- and you might be a "test case" on whether a "facility" includes school driveways.  Since most schools are fenced -- the fenced area stands a good chance of meeting the definition -- although a good faith argument could be made the other way around.  Still -- who wants to be a "test case"?

Likewise,  Florida Statute 790.115 fully covers what you can or can't do on school "property" -- which language would definitely include school "grounds".    That section only allows possession of a handgun in a vehicle "pursuant to 790.25(5) -- which requires all handguns to be "securely encased".   There is no exception for a CWP.   There can also be additional exclusions.

So -- while there are many arguments that can be made -- all in good faith -- my opinion is that the only "safe" way to carry in a vehicle -- is securely encased.   I'm not saying that's the only way it would be lawful.  I'm just saying that's the only "safe" way for it to be lawful.  Everything else would depend on the eventual "test case" outcome.

Of course,  if you want to give it a try, and can fork over ten grand for my fee, plus a few hundred more for your bond -- please let me know.

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!


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?

Wednesday, November 6, 2013

Current Self Defense Insurance Plans available in Florida

Many of you have asked me if I favor any particular self defense "insurance" plan.  My response is generally that most of the plans I have seen are designed to "reimburse" you only if you are acquitted of the criminal charges, or the charges are dismissed.  In other words -- you need to pay the attorney and legal expenses up front -- and you are later repaid -- only if you win the case.   For most of us -- that's like no insurance, at all.

USCCA has a somewhat different policy from what I can glean from reading the policy terms.  While  I won't go into the civil side of the policy -- the criminal defense terms seem (in my opinion) to be as follows:

1.   The insurance will pay your attorney his "retainer" up to the "attorney retainer" level you have paid for.  [ie:  either $5,000.00;  $7,500.00;  or $10,000.00].

2.  The insurance will also pay your bail bond premium "up to" the "immediate bond funding" limit you have paid for.

3.  The insurance will also "reimburse" all other attorney and legal expense fees in defending a criminal action to the limit of the range of your selected insurance only if you are: charged with a crime,  enter a plea of not guilty, and are then either acquitted or have the charges dismissed.  In other words -- no cash beyond your selected level on the bond premium and retainer fee until you've won the case.

So . . .  since you can expect typical attorney fees on a disputed aggravated assault in a metro area will be twenty grand, or more, plus expenses -- you will have quite a bit of cash to come up with.  Likewise,  I have serious doubts how fast you'll get the "retainer" funds, and may have to front these if you want an attorney involved, pronto.  Of course -- how fast they pay the initial stuff is a pure guess on my part.  I'd guess about two weeks to thirty days -- and quite frankly -- you'll want an attorney a lot faster than that if you're smart.

While it is possible to find an attorney for less than this amount -- there are no bargains.  Either your attorney will be charging you a fee that properly covers the time he or she needs to put into the case, or your case will suffer.  Attorneys have bills, mortgages, and families to feed -- just like everyone else.

There's also another plan out there called CCW Safe.  If it does what it says -- it may be the best one out there.  The plan has its own attorneys and investigators -- and if you are involved in a self defense shooting, they assign the investigators and attorneys, and pay for everything involved in your defense.  Of course, they choose the firm -- not you.  But again,  this is the only plan I've seen out there that operates in Florida that would cover everything.  So -- certainly worth looking into.

So . . . that's my current analysis on the criminal portion of this insurance.  If you think you have a better self defense policy for criminal charges in Florida -- email  me a copy, and I'll be glad to review it.
postscript:   A reader asked about CCWSafe -- which I've just begun to look into.  If the information on the website is full and accurate -- it may be the best current plan out there for Florida -- but I don't know for sure, and have asked them for additional information so I can try to make an analysis.

Sunday, November 3, 2013

Why only lawyers should read appellate court cases

I just received the following email regarding a new Florida Supreme Court case that was decided October 17, 2013.  [Mackey v. State, 38 Fla. L. Weekly S 724 (Fla. 2013)]. It seems this case is unnecessarily upsetting lots of folks over something that is nothing really new or disturbing.  My only possible explanation why they are upset is because they're not lawyers -- and my personal opinion is that unless you're a lawyer or a law student -- you probably have no business reading case law, because it will likely only confuse you.   Such is the email question in point:

I have had two former students contact me about the Mackey Vs. State ruling. They as well as many in the community seem to be a little scared about be arrested for Carrying a concealed firearm. Even though they are holders of a Fl concealed weapons Licensee. As I am sure you are aware the Fl Supreme Court ruled that the permit is nothing more than a defense to the charged with a violation of 790.01(2) thus giving Police a free for all on arresting legal permit holders.

Answer:    HUH???

                 No way in the world did the Mackey case mean to give that kind of  impression, whatsoever!

                Mackey was a case where an individual who was in an area known for drugs and weapons was spotted by an officer who clearly saw a bulge in Mackey's waist area, and the visible butt of a firearm.  The officer approached Mackey,  asked if he was armed (which Mackey denied), and then did a weapon pat-down despite the fact that Mackey did not give him permission to do so.  When he found the weapon, he asked Mackey if he had a CWP -- Mackey answered "no" -- and was arrested. The arrest also turned up drugs.

           During a motion to suppress,  Mackey's attorney argued that the pat down was unlawful as there was no reasonable suspicion to believe he wasn't carrying the firearm lawfully since so many folks have a CWP.   The Supreme Court held there was plenty of probable cause to believe Mackey was armed as the officer actually saw the gun butt, and also there was an independent basis for the pat down.  The Court held that when an officer has a reasonable basis to believe someone is armed, and other circumstances indicate the person is violating the law  (ie: the obvious lie to the officer combined with being in an area known for narcotics and weapons  -- it is reasonable to do a pat-down for officer safety).  The Court also held that a CWP is "an affirmative defense" to the unlawful carry of a concealed weapon.  However,  and importantly,  the Florida Supreme Court also refused to reverse a similar case where a lower appellate court had held it improper to frisk an individual solely to determine if they were armed, without any other reasonable suspicion.

 The legal significance of the Opinion is NOT that you can be arrested if you have a CWP on your person!   That would be legally insane!  If that happened -- the cop would probably be looking for another job shortly thereafter.  The significance is that circumstances may justify a pat down where there is a reasonable belief a subject is armed,  and other circumstances indicated evasive or other actions by the individual consistent with illegal conduct -- especially if the occurance is in a  drug or high crime area.

So . . .  if you somehow took the time to find and read this case instead of watching NFL or college football -- as any true red-blooded American male should have been doing  -- I remind you of the immoral words of Ebenezer Scrooge in Dickens timeless classic: A Christmas Carol:

"Bah!  Humbug!"

Hope you all can now get a good night's sleep.  The case does not mean a CWP holder can be arrested for carrying concealed.  No way!

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.