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:

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.

Tuesday, July 15, 2014

State v. Teamer -- vehicle stop based on car color

Recently in the case of State v. Teamer, 39 Fla. L. Weekly S478 (Fla. 2014),  the Florida Supreme Court resolved a conflict issue between District Courts of Appeal regarding whether the fact that the color of a vehicle does not match the color on the registration provides grounds for an investigatory stop by police.  The Court held that although such a situation might raise suspicions of an officer -- standing alone,  it did not constitute "reasonable suspicion" for a stop -- primarily because there was no Florida law that requires a owner to update their registration if they have a paint job of a different color.  Sounds pretty clear cut to you and me -- and we all have better things to do than getting stopped by the police for b.s.  But,  many police officers have an "inner radar" that can almost smell criminal conduct -- and in this case, the officer was right because the car was loaded with drugs.  Still -- if cops could do anything they wanted any time they had a bare hunch -- our Constitution wouldn't be worth the paper it's printed on.

Anyway -- the reason I wrote this was not so much the decision of the Florida Supreme Court.  I thought that would be the outcome, and they didn't disappoint me.   Usually,  I consider Florida appellate courts to being fairly receptive of our Constitutional rights -- vs. Federal appellate courts -- which usually could care less about them.  The thing that bugs me is that two Florida Supreme Court Justices -- Justice Canady and Justice Polston -- always seem to not give a damn about our rights  -- and are always (not sometimes) very (very) pro-government -- and anti-citizen.  That's what they did in this case -- they both dissented on the side of the government.  Now,  of course,  that's my perception of their perception.  But, as bad and dangerous as these times are for law enforcement officers -- I can assure you that the attack on your rights and privacy concerns today would likely have Washington,  Jefferson, and the rest of the boys -- already armed and marching towards Washington (D.C.).   So -- next time the ballot comes out where you're asked if you have a problem with either of these two Justices -- maybe you should do a little research before you give them the carte blanche OK.   Hey -- it's your rights we're talking about here.

Have a great day.

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.

Thursday, July 3, 2014

An Updated Analysis of Florida's Alleged "pro-gun" HB 89 – and the Problems it Has Created.
copyright by jon gutmacher 2014 – All rights reserved.  [updated July 19, 2014]

This is an updated analysis of the results of Florida House Bill 89, signed into law by the Governor on June 20, 2014. I believe the law as passed was ill-advised, and will create substantial problems for gun owners.   Since there may be multiple ways the courts will interpret this malformed piece of legislation – I will give you each possible interpretation as we to through it, section-by-section.   However, to give credit where credit is due – it was a really great bill before the Legislature started tearing it apart and amending it although the now deleted section on warning shots was obviously beyond what would have been acceptable, and my guess is that’s what got the ball got rolling in amending it from its original version.  Once the amending started – the bill didn’t even resemble the original.  At that point,  they should have just killed it, and submitted a better thought-out version in the next legislative session.  Instead, what resulted had no relationship to anything any intelligent person would want for a law.  In fact – the amendments to the bill that finally passed has almost zero good parts, and a ton of really, really bad parts.  In analyzing the effect of the new laws brought about by the bill I will start with the language from the actual bill, as passed, in bold italics, and then follow with the possible interpretations:

Section 1: (1)

The legislature finds that persons have been criminally prosecuted and have been sentenced to mandatory minimum terms of imprisonment . . . for threatening to use force in a manner and under circumstances that would have been justifiable under chapter 776, Florida Statutes, had force actually been used.

An unfortunate misunderstanding of law, and worse mistake on choice of wording.  The main problem with this section is that Florida law, thru case decisions rather than statutory law, already includes threats as the use of “non-deadly force”.  See, Stewart v.  State, 672 So.2d 865 (Fla.  2DCA 1996); Rivera v.  State 871 So.2d 953 (Fla.  3DCA 2004).  Thus, there was no need to add this language into the statutes in the first place.   The other problem is that by using the language “had force actually been used” – will likely be interpreted by the courts as not allowing a threat of force greater than the amount of actual force that could have been used in the same situation, had force been used.  If they just had wording that a threat short of a warning shot is lawful if reasonable -- it would have eliminated 85% of the problems in this law.

This problem in drafting is reinforced by the next legislative statement in the Bill:

The Legislature intends to provide criminal and civil immunity to those who threaten to use force if the threat was made in a manner and under circumstances that would have been immune under chapter 776, Florida Statutes, had force actually been used.

b.   Clarify that those who threaten to use force may claim self-defense if the threat was made in a manner and under circumstances that would have been justifiable under chapter 776, Florida Statutes, had force actually been used.

That may mean you lose immunity, maybe have to retreat, or both – if you make a threat of force greater than you could actually have used at the time the threat was made.  If this is what the courts decide, we’re all in for big trouble – because the law prior to this would be that there is no duty to retreat in a non-deadly force situation [Keith v.  State, 614 So.2d 560 (Fla.  1DCA 1993)], and that a threat is lawful self defense to stop or prevent unlawful conduct, as long as it is “reasonable” under the circumstances.  See, United States v.  Black, 692 F.2d 314 (4th Cir.  1982).  The one exception would be where a “warning shot” is involved – as Florida case law has consistently held that a warning shot is the use of “deadly force” – thus – can only be used where there is a reasonable fear of imminent death or great bodily harm, or such appears reasonable and necessary to stop the imminent commission of a forcible felony.

Section 2:
Section 2 of the legislation is somewhat good, but fell way short of where it needed to go.  It eliminated the three year mandatory minimum prison sentence for aggravated assault with a firearm where an individual is convicted of aggravated assault after his or her self-defense claim failed – and that individual was convicted after a trial, or plead guilty.  In such situations, if the court makes a finding that the defendant’s actions were committed in a “good faith” belief he or she was acting lawfully – then the court may forego sentencing the individual to the three year mandatory prison sentence.  Unfortunately – I believe these circumstances will rarely happen.  Here’s the statutory wording – and then my fuller explanation:

Section 2.   Subsection (6) is added to section 775.087, Florida statutes, to read: 

775.087  Possession or use of weapon; aggravated battery;  felony reclassification; minimum sentence.—    Notwithstanding s. 27.366, the sentencing court shall  not impose the mandatory minimum sentence required by subsection  (2) or subsection (3) for a conviction for aggravated assault if  the court makes written findings that the defendant had a good faith belief that the  aggravated assault was justifiable pursuant to chapter 776.   The aggravated assault was not committed in the course  of committing another criminal offense.   The defendant does not pose a threat to public safety.  The totality of the circumstances involved in the  offense do not justify the imposition of such sentence

The problem here is that I believe a court will rarely make such findings because if the defendant is already convicted – it will normally be “politically incorrect” to find he or she used self defense in “good faith”, or does not pose some kind of “future threat” to society.  Moreover, “good faith” is not defined by the Legislature, and there are too many variations of what it might be, or how a Florida  appellate court will eventually define it.  I think it needed -- and still needs a legislative definition rather than leaving it up to the courts.  To me,  “good faith” is a subjectively honest, but mistaken belief that the force or threats used were necessary to prevent or stop what the defender  perceived as  unlawful conduct of another.   So – while there is always a chance this might help an occasional defendant – the section will likely leave most folks out of luck – even if subjective good faith was used.

SECTION 3  – 776.012
1. A person is justified in using or threatening to use 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. 

Analysis:   Well . . .  it says you can only use or threaten to use “non-deadly force” to the same extent you believe it is necessary to defend against another’s imminent use of “unlawful force”.   The literal translation is that you can only threaten to use "non-deadly force" in a non-deadly force situation. If instead,  you happen to threaten the use of deadly force –  you've probably lost any immunity you might otherwise have had under the self defense statutes,  you may just have used “excessive force” as a matter of law, and you might just have to retreat first before you could legally “threaten” using any type of self defense beyond the degree of force you could actually had used, if you had used force!

Moreover, the statute requires your use of any threat to be premised not just on another person’s unlawful conduct – but their conduct must be aimed to use unlawful “force”.  Certainly,  not every type of crime requires force being used to accomplish it.   So – will the courts say you can’t threaten non-deadly force to stop a non-violent felony, or misdemeanor, or will "force" be equated with any type of conduct, whatsoever?  Based on current Florida decisional law -- I'll vote for the last interpretation. However, if they chose the first one  -- your permitted language will be restricted even if it would otherwise have been totally reasonable under former law!

So . . . what do I think the courts will do in this situation?

Well, I think they will be hard pressed to find that a threat of the use of “deadly force” will be permitted in a situation where only non-deadly force could have been used.  The changes to the statutory language are too clear, and where statutory wording is "clear" -- the courts have previously held they may not interpret it other than the clear meaning of the wording.   If I’m right in this interpretation – I think a threat of deadly force in a non-deadly force situation will cost you your “immunity” – but otherwise not effect you.  And, while it is possible,  I think the courts would be hard-pressed to find that a simple threat short of amounting to an "assault" would  be “excessive force” if it otherwise seems “reasonable” under the circumstances.  To do so would turn a hundred years or more of case law on its head.  But, whatever the courts will do – the statute is miserably worded, and needs to be amended in the next legislative session.

Florida Carry has criticized my analysis of this section, but I must unfortunately stand by it, and hope they, and Unified Sportsmen, don't wait the two years it normally takes for an appellate court decision to be reported, and become part of the "case law".  The language in this section (and others) needs to be changed to make sure that any type of threat short of a warning shot is lawful -- if reasonable.  As always,  I offer my services to them or the Legislature regarding any drafting issues or potential problems -- even on a totally confidential basis.  I don't need any credit.   On the other hand,   I have never been taken up on my standing offer in the past twenty years.

Subsection 3 – part 2

(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. 

OK . . .   Subsection (2) is the true killer of nine years of pro-gun progress in the Florida appellate court system!  It has rendered meaningless all the really great recent case law that found that Florida Statute 776.012 was independent of the problems and heavy burdens in Florida Statute 776.013.  See, State v.  Wonder, 128 So.3d 867 (Fla.  4DCA 2013).


First, it confirms my interpretation that a threat of using "deadly" force may only be used if the defender has a reasonable belief that such is reasonable and necessary to prevent imminent death or great bodily harm, or prevent or stop the imminent commission of a forcible felony.  In other words – since this subsection says you can only use the “threat” of deadly force to stop or prevent deadly force (or a forcible felony) – then it reinforces the language in the previous subsection:  that you can’t threaten to use deadly force in a non-deadly force situation.   A really stupid, senseless piece of drafting that will cause all sorts of problems for anyone involved in a possible self defense situation, or situation where they are trying to prevent a non-violent crime.  As I keep saying:  What was needed was simply to add language that a threat to use any type of force is lawful self defense, if reasonable.

The next thing this subsection screwed up are situations where the use of deadly force was absolutely needed, and permitted – but will now go back to pre-2005 law, and require retreat.  Yes – you heard me right – retreat!   This will occur if you are somewhere you might not be lawfully (ie: "a place where you have a right to be").   (For example:  You’re trespassing at some park after it closes – and somebody tries to rob you at gun point), or if you happen to be involved in some criminal enterprise, no matter how small (e.g. – same scenario as the last – but add smoking a joint, or sitting in a parked car DUI – and somebody tries to rob you, etc.).   Under this new version of F.S. 776.012 you must RETREAT before using deadly force (if you could retreat with safety) if either of these two situations exist.  That’s right – retreat!   No “Stand Your Ground”!

Thus, the most likely interpretation if you fit either situation, will be a throw-back to pre-2005 Stand Your Ground, and will result in a situation where anyone claiming immunity and self defense under F.S. 776.012 (or any other section) who uses, or even threatens the use of deadly force, and is not in a “place where they have a right to be”, or are engaged in any type of behavior that could be considered “criminal” – must first retreat – if they can do so in safety – BEFORE making either a threat of using deadly force,  or before using actual deadly force.  And while the courts will likely agree that extending this situation to a mere threat of using deadly force is just plain stupid – the courts will also likely say that is clearly what the wording in the statute requires, and if the Legislature doesn’t like the interpretation – then the Legislature should revise the statute!   In other words – stupid wins!   Exactly what I tried to warn everyone about when they started amending the original bill!  (There is a constitutional argument that such an interpretation might render this section of the statute as violative of Due Process -- but that is just an argument at this point).

I understand Florida Carry does not agree with me, but again, I must stand by my interpretation.  If the Legislature really meant to emasculate F.S. 776.012 to have the same requirements as 776.013 -- it was a tragic mistake.   I would urge Unified Sportsmen and Florida Carry to support a quick amendment to the recent changes in the law in the next legislative session.  Like I said before -- I'd be glad to help.  Otherwise, it could be almost three to four years before we get a Florida appellate court decision on the issue, as it takes at least sixteen months for an appellate court to make a decision, and it will be an additional several months to two years before a case on this issue comes up, and runs its way through the courts.  Do we really want to wait that long to find out this language is the major problem I fear it will be?  I certainly hope not!

Section 4 of the new legislation addresses Florida Statute 776.013 which generally deals with protection of home, residence, or occupied conveyances.   Here’s Subsection (1) of that particular section:

Section 4. Subsections (1), (2), and (3) of section  776.013, Florida Statutes, are amended to read: 776.013 Home protection; use or threatened use of deadly force; presumption of fear of death or great bodily harm. 

(1) A person is presumed to have held a reasonable fear of  imminent peril of death or great bodily harm to himself or  herself or another when using or threatening to use defensive force that is intended or likely to cause death or great bodily harm to another if: 

(a) The person against whom the defensive force was used or threatened was in the process of unlawfully and forcefully  entering, or had unlawfully and forcibly entered, a dwelling,  residence, or occupied vehicle, or if that person had removed or  was attempting to remove another against that person's will from the dwelling, residence, or occupied vehicle; and 

(b) The person who uses or threatens to use defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

  The revision doesn’t change this part of  F.S. 776.013 all that much except for the inclusion of “threats”.  But, since this section deals solely with the use and threats of deadly force, and presumptions attached to them,  it is significant that the language used in subsection (1) is very different than that used in F.S. 776.012, and had it been used in 776.012 would have been substantially more favorable to a defender using only a “threat” – as the statutory wording in this section “when using or threatening to use defensive force that is intended or likely to cause death or great bodily harm” allows just about any type of threat – because a threat – even one coupled with an aggressive display of a firearm – cannot be intended or likely to do much of anything other than frighten the other person – and certainly cannot “cause death or great bodily harm”, unless it is a warning shot.  So -- this wording is not only OK -- it's actually pretty damn good.

Section (2) --  The presumption set forth in subsection (1) does not  apply if: 

(a) The person against whom the defensive force is used or  threatened has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or  titleholder, and there is not an injunction for protection from  domestic violence or a written pretrial supervision order of no  contact against that person; or 

(b) The person or persons sought to be removed is a child  or grandchild, or is otherwise in the lawful custody or under  the lawful guardianship of, the person against whom the  defensive force is used or threatened; or

(c) The person who uses or threatens to use defensive  force is engaged in a criminal activity or is using  the dwelling, residence, or occupied vehicle to further a criminal activity; or

(d) The person against whom the defensive force is used or threatened is a law enforcement officer, as defined in s.  943.10(14), who enters or attempts to enter a dwelling,  residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in  accordance with any applicable law or the person using or  threatening to use force knew or reasonably should have known that the person entering or attempting to enter was a law  enforcement officer. 

Analysis:   Subsection (2) of Section 4 of the legislation also addresses only F.S. 776.013, and makes few changes over the previous statute other than the inclusion of “threats”, and changing the wording “unlawful activities” to “criminal activities”.  That's a good change as it eliminates non-criminal traffic offenses such as speeding, etc.   Otherwise,  the revision and amended subsection does not,  in my opinion, constitute a significant change.  However, it is clear that by eliminating the language requiring the defender to be “in a place where they have a right to be”, and also to not be engaged in any “unlawful or criminal activity”, and instead citing to the new sections in F.S. 776.012 that have those exact requirements – it makes crystal clear that the requirements now apply to both section 776.012 and 776.013 equally, despite the huge problems this creates for defenders who previously could use F.S. 776.012 without these additional onerous requirements.

Section (3):    A person who is attacked in his or her dwelling, residence, or  vehicle has  no duty to retreat and has the right to stand his or her ground  and use or threaten to use force, including  deadly force, if he or she uses or threatens to use force,  in  accordance with s. 776.012(1) or (2) or s. 776.031(1) or (2).

Again -- fine.  No real change other than the addition of the word "threaten".

Section 5 of the revision deals with the defense of property other than a dwelling, as well as personal property, and is basically unchanged in wording except for the inclusion permitting “threats”, and the heading was corrected to reflect that the section deals with defense of property vs. defense of other persons.   Here’s the actual wording:

Section 5. Section 776.031, Florida Statutes, is amended to read:
776.031 Use or threatened use of force in defense of  property others.— 

(1) A person is justified in using or threatening to use the use of 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.

So, what did the amendments to these subsections change by adding “threatening”?   Well . . . it means exactly what it says:

1. You can only threaten to use deadly force, or actually use deadly force if you reasonably believe such conduct is necessary to stop or prevent a forcible felony!

2. However, if you are not “at a place where you have a right to be” – or are engaged in any type of "criminal conduct"  -- even if there is no nexus between the conduct or place and the fact that you have to defend yourself -- you will likely need to retreat first before either using a threat of deadly force . . . or the actual use of deadly force.  Makes no sense as to a threat. Might be unconstitutional in certain cases.  But, still -- the language is clear -- if you fit in either of these situations -- you must retreat (if you can do so in safety) in order to claim the protections of the immunity statute.

Section 6. Subsections (1) and (2) of section 776.032, 218 Florida Statutes, are amended to read: 

776.032 Immunity from criminal prosecution and civil  action for justifiable use or threatened use of force.— 

(1) A person who uses or threatens to use force as  permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in such conduct and is immune from criminal  prosecution and civil action for the use or threatened use of such force by the person, personal representative, or heirs of the person against whom the force was used or threatened, unless  the person against whom force was used or threatened is a law enforcement officer, as defined in s. 943.10(14), who was acting  in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using or threatening to use force knew or reasonably should have known that the person was a law  enforcement officer. As used in this subsection, the term  "criminal prosecution" includes arresting, detaining in custody,  and charging or prosecuting the defendant. 

(2) A law enforcement agency may use standard procedures  for investigating the use or threatened use of force as described in subsection (1), but the agency may not arrest the  person for using or threatening to use force unless it  determines that there is probable cause that the force that was  used or threatened was unlawful.

Subsection 6 concerns F.S. 776.032, which is the section of the law that grants “immunity” for persons using self defense pursuant to previous sections of the C.  776, Florida Statutes.  The amendment adds “threats” into the immunity scheme (even though prior case law already had accomplished that), but otherwise leaves this section relatively unchanged.  However, it is important to remember that recent case law has clarified that each of these prior sections work independent of each other.  In other words – in a courtroom scenario you can pick and chose between the ones you want to use, or don’t want to use.  That used to be important because F.S. 776.012 was much easier to use in a defense than F.S. 776.013 except where the defense pertained to a dwelling, residence, or occupied conveyance.   However, those distinctions have now been wiped away by this new, poorly worded legislation.

Section 7.   Subsection (2) of section 776.041, Florida  Statutes, is amended to read: 776.041 Use or threatened use of force by aggressor.—The justification described in the preceding sections of this  chapter is not available to a person who:  

(2) Initially provokes the use or threatened use of force  against himself or herself, unless: 

(a) Such force or threat of force is so great that the person reasonably believes that he or she is in imminent danger  of death or great bodily harm and that he or she has exhausted  every reasonable means to escape such danger other than the use  or threatened use of force which is likely to cause death or  great bodily harm to the assailant; or

(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use or threatened use of force, but the assailant continues or resumes the use or threatened use of force .

Section 7 is another section that will likely cause infinite problems far beyond what anyone envisioned, or even dreamed about.  While you wouldn’t think that adding “threats” to the section would change much – it has opened up a can of worms – which only future court decisions will determine.  I have no idea where it will lead, other than it can cause horrible changes in the law – or – maybe not any.


The problem with the section has always been that the term “aggressor” has never been defined in the statutes, and case law tends to hold that before you become an aggressor you must either be performing an unlawful action (ie: trespass, theft, breach of the peace, etc.), or if the threats are merely by words, then words or actions alone short of creating a reasonable fear in another of imminent violence (ie: an “assault”) do not make you the “aggressor”.

However, by adding the words “the threatened use of force” to the mix – the Legislature just turned the case law on its head – because now, words alone that “threaten” force – even if the threat is conditional and not imminent – can make you the aggressor!  Thus, a situation involving an argument where one individual says to the other: “If you come any closer, I will hit you” – has now made the individual making the verbal threat to use force – the “aggressor” – even if the other guy started everything, and wouldn’t lay off, that is:  so long as the other guy didn’t make a threat of using force, first.  Again – a big mistake in wording, and failure to understand the implications of the amendments.

Section 8 of the new law concerns F.S. 776.051, which pertains to use of force in resisting arrest.  Although it adds “threats” into what a citizen can’t do – my opinion is that it makes no substantive change in the law, hence I am eliminating it from further discussion in this article.

Section 9 is unchanged, and I also therefore eliminate it from discussion.  I agree with Florida Carry's response to an earlier version of this article, that "deadly force" will not apply to less than lethal ammo used by law enforcement, hence I have corrected my analysis.   However,  it will be "deadly force" if a civilian uses less than lethal ammo, as F.S. 776.06(a) only applies to law enforcement.

Section 10 of the legislation creates F.S. 776.09 to facilitate an expunction of record where a case was dropped by the State Attorney or Statewide Prosecutor, or dismissed by the court.  Subsection (1) applies to those rare instances where the State actually drops a charge on the basis of self defense vs. offering a plea bargain to a lesser charge.  If so,  this section requires such a finding be documented in writing in the prosecutor’s files.  As a practical matter this will rarely happen as the State normally would offer a plea bargain to a significantly lesser charge, or just say they didn’t have “enough evidence” to go forward with confidence, rather than concede self defense.  Rarely, will they ever admit the initial arrest and/or prosecution was just plain wrong!  In forty years of practice I only saw that happen once.  So, for the most part – this section is just pure illusion based the Legislature’s ignorance on how things really work in the criminal justice system.

Subsection (2) applies to where the court dismisses a case based upon a finding that a defendant used lawful self defense.  In other words – where the defendant wins a “Stand Your Ground” pre-trial hearing.  In such a situation, the judge must make a written finding that the dismissal was due to the use of lawful self defense, and that finding is kept in the court records.

Subsection (3) states that if either of the predicates in the previous subsections occur, then the defendant may apply for an expunction.   However, if you’re really sharp,  what you will find lacking in any of these sections is what happens if a case goes to trial and the jury finds the defendant not guilty – where the defense was self defense?  In such an instance – you’re out of luck!  No expunction!  The Legislature doesn’t trust juries, and made that clear in previous versions of the expunction statute.  Although a dismissal by the State or Court will allow an expunction – a “not guilty” verdict by a jury of your peers does not!  The Legislature doesn’t give a jury verdict the same value.  So much for the Constitution!  Thanks a lot!

Section 11 amends F.S. 943.0585, and adds a subsection (5) to that statute which then sets forth the procedures for obtaining the expunction permitted in the previous Section 10.  Since the procedures involved are not within the purview of this article, I will leave that for someone else to describe.

So, that’s it for my analysis of this really horrible legislation.   Go write Marion Hammer at Unified Sportsmen of Florida on that.  She led the charge for the current bill – she can also lead the charge to correct it.  However, one final word on this particular legislation.  Aside from everything else – what the current changes regarding the use of  "threats" have also done is complicate self defense to such an extent – that anybody trying to use it will likely be confused – especially if any type of verbal threats are involved. Anyone reading this analysis will immediately understand at least that point -- this new legislation is confusing!

Also, what you and the Legislature need to understand is that – a “threat” can be totally lawful if made in response, or to stop unlawful conduct of another!  Verbal threats even more so.  But, this legislation made no distinctions.  In fact, had the Legislature just used language that any threat of  force (deadly or non-deadly, except warning shots)  is lawful if it appears “reasonable” --  then that wording would have solved everybody's problems without having the legislative mess we now have.

But for now, the bill (and now the law) is what it is – and we’re stuck with it unless the Legislature, and its supporters realize the problems created, and are willing to correct them. Hopefully, they will – and hopefully,  this article will help you and them understand the problems with this new law.

*  Although this is a copyrighted work -- you have my permission to make or send any copies you may wish so long as my authorship and copyright notice are prominently displayed at the beginning of the article.

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.

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.