I've been receiving lots of calls from folks on the West Coast about representation on firearm and weapon cases, and since I don't travel there, they've been asking me for advice on who to hire. The problem is I don't really know anyone over there who does the typical concealed gun case, self defense, or aggravated assault. So -- here are my suggestions when you don't know anyone.
First -- you want to make sure the attorney is pro-gun. If they have a CWP, or belong to the NRA, or both -- that's a positive start. The last thing you want is an anti-gunner, no matter how good they are! They just can't defend it the same way! How do you find out? Ask! If the secretary doesn't know -- ask her to find out for you, and call back. If you're talking to the attorney face-to-face -- ask! Don't be ashamed. It's something you should know, and are entitled to know -- and is not something they should be hesitant to answer. If they don't want to answer -- go elsewhere. It's your life and reputation we're talking about.
Next is experience. Having someone who was a former Assistant State Attorney or Assistant Public Defender assures you they have been around in the criminal justice system, and know how it works. They probably know the judges, as well. Very important. I would normally opt for someone who was in the State Attorneys Office simply because they may have more contacts -- but that's probably because I used to be one, and might be a bit prejudiced. However -- in the end, it's really the individual attorney's reputation with other attorneys and judges that is the most telling. If you know a judge or attorney -- ask for their recommendation. Likewise, while it is not critical -- an attorney who is listed as a "board certified criminal trial attorney" in the phone book means they have plenty of trial experience. It doesn't necessarily mean they're good at trial -- but it does assure you they know their way around. I used to be board certified -- but I let it drop. However, it does show a level of committment that only goes to someone who practices primarily in the area of criminal law. You should know that.
Fees vary widely. Paying a very high fee does not guarantee you are getting high quality work. Some attorneys will promise you what you want to hear, knowing they can't deliver on that, or that they'll have to give you the "bad news" later. However, what you do need to know is that getting someone "cheap" -- is not a great idea. If the attorney isn't being paid the amount of money he needs to put in the time and effort the case deserves -- you're gonna get screwed. With rare exception -- cases need to be worked up no matter how simple they may seem to you. Likewise, if the case is complicated -- or there is a severe penalty at stake -- you don't want your attorney to be cutting his hours because he didn't get paid enough to make it worth his time. If you've got an aggravated assault case -- unless you're just gonna do a plea without any work up -- I don't know how an attorney can do it for less than ten grand, and still make a profit on his time unless he or she is really hurting for business.
One more warning. Rarely, can an attorney predict what will happen in your case without doing some thinking on it after the interview is over. A proper interview will take anywhere from an hour to two hours, depending on the complexity of the issues. Even on a simple case, I usually take an hour with a client. On complex stuff -- it runs two to four hours. While the norm is that the initial consult is free -- attorneys with a busy practice or better reputation may charge you for their time. I usually do. Plus, paying for a consultation prior to being arrested, or for a "second opinion" -- is normally something that you are charged for. Hourly rates across the State vary -- but anywhere from $150.00 per hour to $300.00 per hour would not be unusual.
In the end, I guess it's somewhat a matter of luck, and "gut feeling" on whether you retained a good attorney, or not. If you got a good result -- you made the right choice. If not -- sometimes that's not the attorney's fault. It's just the way the cookie crumbles. However, if you get a really "bad feeling" about how your case is being handled -- you may be right. In those circumstances you have an absolute right to hire another attorney as long as you do that a reasonable time before your case is set for trial. Don't drag your feet on it. Pay someone for a consult, and second opinion. If you then decide you need to switch, you'll likely lose what you've paid the first attorney -- but it's better than the alternative of getting screwed by the system, and winding up in prison. At the very least -- a conviction on even a misdemeanor will substantially affect job prospects and promotions in this day and age.
Under any circumstance, you should know that every attorney will handle a case differently. No two attorneys are alike, and few will approach things the same way. Who you select will often make the difference in what happens in your case. The system isn't perfect. So the best advice is: Stay out of trouble. And by the way -- my book is less than thirty bucks. Buying it, and reading it may save you all the trouble and expense you're reading about here.
Good luck.
Saturday, November 21, 2009
Thursday, September 10, 2009
How to Speed Up Florida CWP issuance
While Florida law says the Division of Agriculture has 90 days to make a determination on issuance of the Concealed Weapons Permit application -- delays are nearly doubling that in many instances as the Division is completely swamped by application increases. To remedy this situation all regional offices of the Division of Licensing are allowing people to process their CWP applications electronically with the permit usually being issued with two weeks or less afterwards. Procedure is: You must call the regional office and make an appointment for the purpose. You must pay $117.00 by check or money order. You will fill out the application electronically at the regional office, and they will also electronically take your photo, and fingerprints. It’s all included in the $117.00. Please make sure you have your certificate of completion from the CWP class with you, and photo i/d.
If you need your application processed in a hurry -- this is the absolute best way to do it.
If you need your application processed in a hurry -- this is the absolute best way to do it.
Thursday, August 27, 2009
Can you legally shoot a retreating felon?
A recent appellate court case has been generating quite a bit of wrong information in the press, and amongst Florida firearm owners. The case, Hair v. State, Case No. 1D09-2501 decided on August 19, 2009, by the First District Court of Appeal has been alleged to say you can lawfully shoot a RETREATING assailant pursuant to Florida Statute 776.013 -- and have statutory immunity. That's not what the case says! The newspapers are not reporting this case accurately, likely because they are not attorneys skilled in this area of the law.
The case involves a decedent who unwisely forced himself into an occupied vehicle, and started beating on the occupants. A passenger, Jimmy Hair, had a lawful firearm -- and shot the decedent -- although a friend of the decedent was unsuccessfully trying to pull him out. The District Court of Appeal simply held that Mr. Hair met all the statutory predicates of 776.013, and since the decedent was still inside the vehicle at the time he was shot -- Mr. Hair met the immunity requirements -- and it was error not to dismiss the case.
The Court mentioned that it was unlikely the decedent was attempting to retreat at the time he was shot -- and if so -- it was because a friend was trying to pull him out of the car despite his resisting such. The Court added that "the statute makes no exception from immunity when the assailant is in retreat" -- however -- the Court was clearly referring to a situation where the assailant was still inside -- not when he was outside the protected area.
The reasoning is sound. So long as an assailant is inside a protected area he poses a threat unless he clearly surrenders, or makes it crystal clear that he no longer poses a danger, and is breaking off the crime. Of course, 776.013(4) presumes he's there to commit a forcible felony by violence.
So -- where did the confusion on this come from?
The wording of the appellate court on "retreat" taken out of context by the press. Probably due more to stupidity than deliberateness.
Likewise, two years earlier the Second District in State v. Heckman, 993 So.2d 1004 (Fla. 2DCA 2007), held that a homeowner who shoot an assailant who had broken into the defender's garage, but had broken off his criminal enterprise, and was clearly retreating down the driveway -- was not entitled to immunity, and that his claim of self-defense was without merit.
Be warned -- while a culprit who uses force to enter or attempt to enter an occupied vehicle, home or residence may pose a significant danger at that time -- once that person exits, is in obvious retreat, and not taking aggressive action -- the use of deadly force will likely result in a charge of aggravated battery or manslaughter unless the crime committed was of the most serious nature -- such as murder, rape, and possibly kidnapping.
The case involves a decedent who unwisely forced himself into an occupied vehicle, and started beating on the occupants. A passenger, Jimmy Hair, had a lawful firearm -- and shot the decedent -- although a friend of the decedent was unsuccessfully trying to pull him out. The District Court of Appeal simply held that Mr. Hair met all the statutory predicates of 776.013, and since the decedent was still inside the vehicle at the time he was shot -- Mr. Hair met the immunity requirements -- and it was error not to dismiss the case.
The Court mentioned that it was unlikely the decedent was attempting to retreat at the time he was shot -- and if so -- it was because a friend was trying to pull him out of the car despite his resisting such. The Court added that "the statute makes no exception from immunity when the assailant is in retreat" -- however -- the Court was clearly referring to a situation where the assailant was still inside -- not when he was outside the protected area.
The reasoning is sound. So long as an assailant is inside a protected area he poses a threat unless he clearly surrenders, or makes it crystal clear that he no longer poses a danger, and is breaking off the crime. Of course, 776.013(4) presumes he's there to commit a forcible felony by violence.
So -- where did the confusion on this come from?
The wording of the appellate court on "retreat" taken out of context by the press. Probably due more to stupidity than deliberateness.
Likewise, two years earlier the Second District in State v. Heckman, 993 So.2d 1004 (Fla. 2DCA 2007), held that a homeowner who shoot an assailant who had broken into the defender's garage, but had broken off his criminal enterprise, and was clearly retreating down the driveway -- was not entitled to immunity, and that his claim of self-defense was without merit.
Be warned -- while a culprit who uses force to enter or attempt to enter an occupied vehicle, home or residence may pose a significant danger at that time -- once that person exits, is in obvious retreat, and not taking aggressive action -- the use of deadly force will likely result in a charge of aggravated battery or manslaughter unless the crime committed was of the most serious nature -- such as murder, rape, and possibly kidnapping.
Tuesday, August 25, 2009
How things can go really wrong.
I just did a seminar in Tampa, and as usual, a few questions popped up on the aftermath of a self defense situation. I am often asked the same question – in different ways – but the answer is always the same. When you are facing a mandatory minimum sentence on a charge – even where it seems absolutely clear that you should not be prosecuted – the worst case scenario can occur. Sometimes it’s a lazy cop, or one who doesn’t care. Sometimes it’s because someone exaggerates. Sometimes it’s because the real bad guy lies to save himself – by falsely implicating you, or making up things. Sometimes – it’s entirely different than all of these. I’ll give you an extreme example of how the impossible happens:
I’m handling a case right now out of Sebastian, Florida. My client goes into his regular bank, National City Bank, in Sebastian, where he’s been banking for ten years or more – and tells them he wants to withdraw a rather large sum of money in cash. Even though it’s his money, even though he has an absolute right to take it out anyway he wants to – the male bank official he’s dealing with tries to talk him into taking it out as a cashier’s check – because that’s “safer”, and because it’s “dangerous” to walk around with that much cash. My client says he understands, but wants the money in cash, anyway. The bank official calls over the branch manager, who knows my client somewhat better than the first employee. She also tries to talk him out of taking the money in cash, and taking a cashier’s check – because it’s “safer”, and because taking that much cash is “dangerous”.
What does my client do? Probably not the smartest thing in the world – but somewhat understandable under the circumstances. He momentarily lifts his shirt to expose the butt of a firearm he has a CWP for – and says something to the effect of: “Don’t worry – I can take care of myself”. The bank officials, react (not improperly) in an abundance of caution, call the police, and accurately inform the police of the situation, and that my client momentarily showed a gun – and knowing the police are going to respond in a somewhat SWAT like manner, gradually clear the bank out of customers and personnel, except for the one male employee who continues to talk to my client at his desk, and the assistant bank manager. Throughout the entire twenty-plus minutes of following 911 conversations – the bank officials continue to assure the police that my client has “not threatened anyone”, and is “under control”. Although they do say he “appears nervous”, “something isn’t right with him”, and he’s been talking about health problems his wife is having.
All the time, the male bank employee continues to calmly talk to my client at his desk, keeping him distracted and occupied until the bank can be cleared out, and the police can get in position. During this time my client talks to him about various things including the problems the banking industry is having – and makes the comment that the employee “should be very afraid” – a reference relating to the substantial economic problems within the banking industry.
Now, the police arrive. Take my client by surprise as planned, forcefully place him on the ground, disarm, and arrest him. Again – maybe somewhat of an overreaction – but maybe not. However, that’s not what this story is about. This story is about what they arrest him for, why you should be very concerned on how you use or display your firearm, and why I’m writing this article.
You’re probably thinking – OK – they probably arrested him for the misdemeanor “open carry”. Maybe a bit of overkill -- but legally possible.
But, no! What they arrest my client for is the third degree felony of “aggravated assault”. A charge that carries a three (3) year mandatory minimum prison sentence – if convicted – because a firearm was involved! Yeah – three stinking years for casually showing the butt of a gun!
How the heck did that happen?
Well, for those of you who don’t remember – an “assault” is an intentional, unlawful threat to do violence to another combined with some overt act that creates a reasonable fear in the victim of imminent violence. F.S. 784.011. The threat must be intentional – and it must actually be intended to create fear or apprehension of imminent violence to the other person. Likewise, the overt act must be such that a reasonable person would believe such attack was about to happen on an immediate (“imminent”) basis. Aggravated assault just adds a deadly weapon to the equation.
So – how did we wind-up with an “aggravated assault” in this case?
Well – the police said that the statement “You should be very afraid” was meant to be an intentional threat of imminent violence to the male bank employee, and that the “overt act” was the momentary showing of the butt of the gun – which caused the bank employee, a Mr. Turkaj, to have a reasonable fear that he was about to be so attacked.
Does this make sense to you?
Does it make sense that Mr. Turkaj would sit with the client for twenty minutes casually talking about the banking industry, or anything else – if he actually believed he was about to be shot? Does it make sense that the bank officials continued to advise the police that my client “hasn’t threatened anyone” and “was under control” if there was a reasonable belief of an “imminent” shooting? And, does it make any sense that in light of all these facts such a case actually was accepted for prosecution as anything other than a misdemeanor?
It doesn’t to me – but then – I’m just the attorney in the case. If you have a different take on it, I’d sure be interested in reading your comments. But, to me, it just seems like one tremendous mistake after another – and that includes filing it as a felony.
So – without getting into the defense of the case – the moral of the story – at least as far as we honest gun owners should be concerned is: (1) Mandatory Minimum Sentences stink – except where you have someone with a prior felony record, or are facing a first or second degree murder charge. Because – if you fight the charge, and somehow lose – you go to jail for anywhere from three to twenty five years – and the judge has no discretion in the sentence even if he or she feels it’s totally unfair. And, (2) is: once you expose your firearm – you don’t know what the hell is going to happen legally – even if you’re totally right. All of a sudden – no matter if you were right or wrong – you can be fighting for your life legally – sometimes over what most of us would consider to be almost nothing.
Food for thought, huh? Have a nice day!
I’m handling a case right now out of Sebastian, Florida. My client goes into his regular bank, National City Bank, in Sebastian, where he’s been banking for ten years or more – and tells them he wants to withdraw a rather large sum of money in cash. Even though it’s his money, even though he has an absolute right to take it out anyway he wants to – the male bank official he’s dealing with tries to talk him into taking it out as a cashier’s check – because that’s “safer”, and because it’s “dangerous” to walk around with that much cash. My client says he understands, but wants the money in cash, anyway. The bank official calls over the branch manager, who knows my client somewhat better than the first employee. She also tries to talk him out of taking the money in cash, and taking a cashier’s check – because it’s “safer”, and because taking that much cash is “dangerous”.
What does my client do? Probably not the smartest thing in the world – but somewhat understandable under the circumstances. He momentarily lifts his shirt to expose the butt of a firearm he has a CWP for – and says something to the effect of: “Don’t worry – I can take care of myself”. The bank officials, react (not improperly) in an abundance of caution, call the police, and accurately inform the police of the situation, and that my client momentarily showed a gun – and knowing the police are going to respond in a somewhat SWAT like manner, gradually clear the bank out of customers and personnel, except for the one male employee who continues to talk to my client at his desk, and the assistant bank manager. Throughout the entire twenty-plus minutes of following 911 conversations – the bank officials continue to assure the police that my client has “not threatened anyone”, and is “under control”. Although they do say he “appears nervous”, “something isn’t right with him”, and he’s been talking about health problems his wife is having.
All the time, the male bank employee continues to calmly talk to my client at his desk, keeping him distracted and occupied until the bank can be cleared out, and the police can get in position. During this time my client talks to him about various things including the problems the banking industry is having – and makes the comment that the employee “should be very afraid” – a reference relating to the substantial economic problems within the banking industry.
Now, the police arrive. Take my client by surprise as planned, forcefully place him on the ground, disarm, and arrest him. Again – maybe somewhat of an overreaction – but maybe not. However, that’s not what this story is about. This story is about what they arrest him for, why you should be very concerned on how you use or display your firearm, and why I’m writing this article.
You’re probably thinking – OK – they probably arrested him for the misdemeanor “open carry”. Maybe a bit of overkill -- but legally possible.
But, no! What they arrest my client for is the third degree felony of “aggravated assault”. A charge that carries a three (3) year mandatory minimum prison sentence – if convicted – because a firearm was involved! Yeah – three stinking years for casually showing the butt of a gun!
How the heck did that happen?
Well, for those of you who don’t remember – an “assault” is an intentional, unlawful threat to do violence to another combined with some overt act that creates a reasonable fear in the victim of imminent violence. F.S. 784.011. The threat must be intentional – and it must actually be intended to create fear or apprehension of imminent violence to the other person. Likewise, the overt act must be such that a reasonable person would believe such attack was about to happen on an immediate (“imminent”) basis. Aggravated assault just adds a deadly weapon to the equation.
So – how did we wind-up with an “aggravated assault” in this case?
Well – the police said that the statement “You should be very afraid” was meant to be an intentional threat of imminent violence to the male bank employee, and that the “overt act” was the momentary showing of the butt of the gun – which caused the bank employee, a Mr. Turkaj, to have a reasonable fear that he was about to be so attacked.
Does this make sense to you?
Does it make sense that Mr. Turkaj would sit with the client for twenty minutes casually talking about the banking industry, or anything else – if he actually believed he was about to be shot? Does it make sense that the bank officials continued to advise the police that my client “hasn’t threatened anyone” and “was under control” if there was a reasonable belief of an “imminent” shooting? And, does it make any sense that in light of all these facts such a case actually was accepted for prosecution as anything other than a misdemeanor?
It doesn’t to me – but then – I’m just the attorney in the case. If you have a different take on it, I’d sure be interested in reading your comments. But, to me, it just seems like one tremendous mistake after another – and that includes filing it as a felony.
So – without getting into the defense of the case – the moral of the story – at least as far as we honest gun owners should be concerned is: (1) Mandatory Minimum Sentences stink – except where you have someone with a prior felony record, or are facing a first or second degree murder charge. Because – if you fight the charge, and somehow lose – you go to jail for anywhere from three to twenty five years – and the judge has no discretion in the sentence even if he or she feels it’s totally unfair. And, (2) is: once you expose your firearm – you don’t know what the hell is going to happen legally – even if you’re totally right. All of a sudden – no matter if you were right or wrong – you can be fighting for your life legally – sometimes over what most of us would consider to be almost nothing.
Food for thought, huh? Have a nice day!
Monday, August 17, 2009
The People's Court -- Bah! Humbug!
I usually don't blog on issues -- I try to stick to the law. But, today I was watching People's Court on TV -- a show I really get a kick out of -- and was truly shocked. The case concerned a seven year old who's mother allowed him to have a pocketknife. Apparently the kid put it in his backpack, forgot about it, and got suspended from school. He had some other issues -- but his having a pocketknife, at all, became the main feature of the entire segment -- which was really supposed to be about his bike scratching a car.
Now, I fully understand. If a kid demonstrates that he isn't mature enough to have a pocketknife -- then parents have a responsibility to take the knife away until he does. But, that's not where the show went. Judge Millian went totally berserk -- yeah, berserk -- over allowing kids to have a pocketknife -- period! She was actually screaming, and she and other members of the show made it plain, that they thought that allowing a kid to have a knife could be grounds to have the child removed from a parents custody! At the very least -- she was screaming and raving that allowing a knife -- even a pocketknife -- was a shocking and irresponsible act for any parent or adult!
Geez! What the hell is happening to this country?
When I was eight I had an seven inch hunting knife with a sheath that I carried on my belt regularly. I lived in the suburbs of New York -- and we had a mix of suburban housing, woods, and farms, all in the same area. Every kid I knew had a knife -- and when I rode my bike to the movies on Saturday afternoon -- all the kids checked their knives in a big box in the lobby before we went in. No big deal! Of course -- nobody -- ever brought their knife to school. We weren't stupid. Our parents taught us that. It made sense -- even to an eight year old.
So -- how do we go from every kid has a knife, and "that's fine" -- to -- if you allow your kid to have a knife -- you're such a bad parent you shouldn't be allow to have your kid?????
That's what I find is frightening. That's why I think this country is in a lot more trouble than many of us realize. Having a major TV personality go "off the cliff" on what is really a "personal choice issue" shouldn't be tolerated. That's the kind of television pontificating that I feel is just plain disgraceful.
So -- I emailed them. I turned off the show. I don't know if that will help, or not -- but -- at least I did it. Maybe you should, too?
Now, I fully understand. If a kid demonstrates that he isn't mature enough to have a pocketknife -- then parents have a responsibility to take the knife away until he does. But, that's not where the show went. Judge Millian went totally berserk -- yeah, berserk -- over allowing kids to have a pocketknife -- period! She was actually screaming, and she and other members of the show made it plain, that they thought that allowing a kid to have a knife could be grounds to have the child removed from a parents custody! At the very least -- she was screaming and raving that allowing a knife -- even a pocketknife -- was a shocking and irresponsible act for any parent or adult!
Geez! What the hell is happening to this country?
When I was eight I had an seven inch hunting knife with a sheath that I carried on my belt regularly. I lived in the suburbs of New York -- and we had a mix of suburban housing, woods, and farms, all in the same area. Every kid I knew had a knife -- and when I rode my bike to the movies on Saturday afternoon -- all the kids checked their knives in a big box in the lobby before we went in. No big deal! Of course -- nobody -- ever brought their knife to school. We weren't stupid. Our parents taught us that. It made sense -- even to an eight year old.
So -- how do we go from every kid has a knife, and "that's fine" -- to -- if you allow your kid to have a knife -- you're such a bad parent you shouldn't be allow to have your kid?????
That's what I find is frightening. That's why I think this country is in a lot more trouble than many of us realize. Having a major TV personality go "off the cliff" on what is really a "personal choice issue" shouldn't be tolerated. That's the kind of television pontificating that I feel is just plain disgraceful.
So -- I emailed them. I turned off the show. I don't know if that will help, or not -- but -- at least I did it. Maybe you should, too?
Saturday, July 25, 2009
Self defense against a dog attack
In a recent appellate court case out of the Fifth District Court of Appeal, King v. State, 34 Fla. Law W.D. 1396 (Fla. 5DCA 2009), the appellate court reversed a conviction for animal cruelty due to the trial court's refusal to charge the jury on the law of self defense. While the self defense scenario presented by the defendant at trial (an alleged dog attack) was extremely weak and sounded more like a sham, the Fifth District correctly held that where there is any evidence supporting self defense, no matter how weak, the law requires the jury be instructed on such. The case is important only in the sense that it confirms that self defense is a defense to almost any charge -- and that includes where the defendant is charged with cruelty to animals.
Friday, July 24, 2009
What happened to the Immunity in 776.032?
I've decided to publish a legal article that I consider critically important regarding problems in Florida courts with the immunity granted in Florida Statute 776.032 -- and the severe oversights which I feel the appellate courts of this State have made. Oversights which are having the effect of either emasculating the "Stand Your Ground" law -- or severely hampering the actual wording of the statute, and the very clear legislative intent of those words. The article was written for lawyers and judges -- and I apologize since this blog is primarily devoted to firearm and self-defense enthusiasts -- but it is a critical issue for all Florida citizens. If you read it, and feel it's as important as I do -- send it to those criminal attorneys and judges you know. It may help influence how this statute is given effect -- and may save you or a friend from unwarranted prosecution at some point in the future. Here's the article:
In 2005 the Florida Legislature passed Florida Senate Bill 436, entitled “An act relating to the protection of persons and property”, later coined with the more popular title of the “Stand Your Ground” law. In a nutshell, the law was a substantial revision of C. 776 (Florida Statutes) that for the most part did away with the “retreat rule” when using deadly force in lawful self-defense, created some important absolute presumptions that gave a person the right to use deadly force in specified situations, and most importantly, from the standpoint of this article – created a new section, F.S. 776.032 that granted immunity from arrest and prosecution to all persons who acted according to the law as set forth in the other revised subsections: 776.013; 776.012; and 776.031. The pertinent portions of 776.032 are as follows:
“(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer . . . . As used in this subsection, the term criminal prosecution includes arresting, detaining in custody, and charging or prosecuting the defendant.”
The law seemed clear enough on its face, but as in many instances with a law, in practice it left quite a few questions open for debate. The primary questions have been how to apply the immunity provisions, and what the procedure should be in applying them.
The first court to venture an opinion on this subject was the First District in Peterson v. State, 983 So.2d 27 (Fla. 1DCA 2008). Peterson had been charged with attempted first degree murder, however, he contended he was acting in lawful self defense under the new statutory sections in C. 776, and was therefore entitled to immunity. He raised the immunity issue pre-trial by a motion to dismiss. The trial court, deciding that there were no formalized rules yet enacted to define the procedure to be used in such a case held an evidentiary hearing using the same procedures and burden that applied in deciding a motion to suppress a confession, and after taking testimony made a determination that the testimony of the alleged victim was to be credited as “clear and reasonable”, and that the facts as found, did not establish self defense immunity as a matter of law. The Defendant then filed for Prohibition in the District Court of Appeal.
In denying prohibition the First District specifically approved of the procedure used by the trial court, rejected the State’s argument that the motion had to follow the procedure in Rule 3.190(c)(4), Fla.R.Cr.P., and held that in making the changes to C. 776 the Legislature had intended to establish a “true immunity and not merely an affirmative defense”. Because of this a trial court was required to: “(D)ecide the matter by confronting and weighing only factual disputes. The court may not deny a motion simply because factual disputes exist.” . . . . “Likewise, we hold that a defendant may raise the question of statutory immunity pretrial and, when such a claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches.” Peterson, supra at 30.
While Peterson remains the law in the First District, a series of cases came out of the Fourth District that took a contrary position. The first and primary case on that is Velasquez v. State, 34 Fla. L. Weekly D266 (Fla. 4DCA 2009). Like Peterson, the Velasquez case involved a charge of attempted murder where the Defendant claimed immunity under the self defense statutes, and filed a motion to dismiss supported by affidavit, asserting that immunity. Like the Peterson case, the trial court held a full evidentiary hearing on the motion, determining by virtue of the strong contrary evidence put on by the State, that the Defendant “ had not established by a preponderance of the evidence that he was immune from prosecution under section 776.032.”
Rather than just deny prohibition on the same basis as found by the trial court – ie: that the evidence did not establish immunity by a preponderance, or that the State had overcome immunity by a preponderance – the Fourth District went gratuitously further, and certified conflict with Peterson, holding that since there were no formalized rules pertaining to the raising of immunity – a motion to dismiss under the immunity statute in F.S.776.032 must be decided in the same way as a “(c)(4) motion” under Rule 3.190, Fla.R.Cr.P., and therefore since the State had presented evidence disputing the factual basis of the immunity – the motion was required to be denied. (Judge Polen concurred specially indicating his view that Peterson was correctly decided, but that the burden was not carried in Velasquez). The Fourth District has since reaffirmed Velasquez in Dennis v. State, 34 Fla. L. Weekly D537 (Fla. 4DCA 2009), with the Fourth District stating: “a motion to dismiss based on statutory immunity is properly denied when there are disputed issues of material fact”
With the First District and Fourth District going head-to-head, the Fifth District decided the identical question by denying certiorari in the case of Gray v. State, 2009 WL 1490835 (Fla.. 5DCA, May 29, 2009). The Fifth District squarely sided with the Peterson case, and held that in the case before it, the trial court used the correct standard in denying a motion to dismiss based on F.S. 776.032, to wit: that the defendant had not met his burden in establishing immunity “by a preponderance”. Then, recognizing that there was conflict with the Fourth District, and that the question ultimately needed to be resolved by the Florida Supreme Court – the Fifth District declined to certify conflict stating that it would pass on that question until it was raised by a plenary appeal.
So – who got it right? The First District (and Fifth), or the Fourth District?
Well, to determine that question, and assuming Peterson was correct in using the format of a motion to suppress – we should first jump to what the actual procedure is on a motion to suppress a confession. Who has the burden, and what must be shown?
In Florida, the law is clear that on a motion to suppress a confession it is the State's burden to establish by a preponderance of the evidence that a defendant knowingly, intelligently, and voluntarily waived his or her Miranda rights. Bevel v. State, 983 So.2d 505, 515 (Fla. 2008). So, if the law is clear that it is the State’s burden – why do both the Peterson and Velasquez decisions refer to the “defendant’s” failure to “establish by a preponderance”? Shouldn’t they have said that the State “met it’s burden”, and established that immunity did not apply, by a preponderance? Was this a mistake in wording, and if not, how did the burden of proof suddenly become switched? More importantly – if there is “no procedure” on how to handle an immunity claim – what have we been doing in Florida for the last thirty or so years when a Fifth Amendment issue on immunity pops up? Do we automatically deny it if the State contests it? And, in a traditional (ie: Fifth Amendment) immunity claim – what does the law say about who has the burden of proof?
Well, the starting point for any immunity question (assuming we’re talking about a “true” immunity vs. a “qualified” immunity) is the case of Kastigar v. United States, 406 U.S. 441 (1972). In Kastigar, the United States Supreme Court held:
“Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence." . . . . “This burden of proof, which we reaffirm as appropriate, is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.” Kastigar, at 460.
The holding in Kastigar was acknowledged in Florida in Holland v. State, 773 So. 2d 1065, 1072 (Fla. 2000); and followed in Zile v. State, 710 So.2d 729, 733 (Fla. 4DCA 1998), where the Fourth District stated:
“This burden of proof, which we reaffirm as appropriate, is not limited to a negation or taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.”
So, if the immunity in 776.032 is a “true immunity”, as the Legislature obviously intended it to be, and Peterson held it to be – it seems that formalized rules or not – Florida courts, including the Fourth District, have not had previous problems following the procedure set out in Kastigar. But, what if the “immunity” in 776.032 is not a “true immunity”. What if it’s a “qualified immunity” as in a federal civil rights action under 42 USC 1983? Or, what if it’s a “statutory immunity” comparable to the Foreign Sovereign Immunities Act (FSIA), in 28 USC 1330?
If we take the qualified immunity route under the federal Civil Rights Act we find a somewhat inappropriate but still workable analogy, as there the civil defendant has the initial "burden to establish that he was acting within the scope of discretionary authority, and if accomplished, the burden then shifts to the plaintiff to show that the [defendant's] action violated the plaintiff's rights in light of clearly established law. Vaughan v. Fla. Dept. of Agriculture, 920 So. 2d 650, 651-652 (Fla. 4DCA 2005). Subjective considerations are irrelevant. Town of Southwest Ranches v. Kalam, 980 So.2d 1121 (Fla. 4DCA 2008). In that sense, a parallel could be drawn to the procedure in a “true immunity” case since a defendant who asserts a qualified immunity defense under the Civil Rights Act “is not required to meet its (summary judgment) burden for a claim of immunity. It is sufficient that the movant in good faith pleads that it is entitled to absolute or qualified immunity. Once the [movant] asserts this affirmative defense, the burden shifts to the plaintiff to rebut it." Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007). Furthermore, the qualified immunity defense “ protects all but the plainly incompetent or those who knowingly violate the law.” Henry v. Purnell, 501 F.3d 374, 377 (4th Cir. 2007).
On the other hand, if we take the approach available under the federal Foreign Sovereign Immunities Act we find a somewhat similar scenario where the initial burden of going forward rests with the party asserting immunity, and then shifts to the party opposing it:
“although a party claiming FSIA immunity retains the ultimate burden of persuasion on immunity, it need only present a prima facie case that it is a foreign state; and, if it does, the burden shifts to the party opposing immunity to present evidence that one of the exceptions to immunity applies” Kelly v. Syria Shell Petroleum Dev., 213 F.3d 841, 847 (5th Cir. 2000)
However, unlike Kastigar, in an FSIA hearing the burden of proof always rests with the party asserting the immunity. Keller v. Central Bank of Nigeria, 277 F.3d 811, 815 (6th Cir. 2002).
Conclusion:
So, what’s the final analysis of what procedure should be employed to determine immunity under F.S. 776.032?
Well, key to that is the understanding that most of the changes in Chapter 776 were enacted in order to enlarge the protections for citizens using deadly force in lawful self defense situations, and prevent their arrest or prosecution for doing so. Furthermore, when you consider that almost all of those situations, if prosecuted, carry a mandatory minimum prison sentence pursuant to F.S. 775.087 ranging from three years to life – it seems abundantly clear that anything less than a full Kastigar hearing – with the burden of proof resting squarely on the shoulders of the State – will virtually emasculate the statute, and leave the immunity defense as mere bunch of empty words. That’s the clear effect of the Fourth District’s opinion in Velasquez. Therefore, since Velasquez certified direct conflict with the opinion in Peterson – the logical conclusion is that sooner or later the Florida Supreme Court is going to have to settle the debate, determine which party really has the burden of proof by a preponderance, and clarify the procedure to be used. Likewise, if the “immunity” granted by F.S. 776.032 is to be more than a collection of empty words – as the Legislature clearly intended it to be – then a defendant must have a direct remedy by interlocutory appeal or certiorari if his or her motion to dismiss is denied. Otherwise, the statute is worthless, and the effect of such a denial would be akin to a judicial rewording (more like a major deletion of wording) of the statute that violates Article II, Section 3, of the Florida Constitution’s Separation of Powers clause.
In 2005 the Florida Legislature passed Florida Senate Bill 436, entitled “An act relating to the protection of persons and property”, later coined with the more popular title of the “Stand Your Ground” law. In a nutshell, the law was a substantial revision of C. 776 (Florida Statutes) that for the most part did away with the “retreat rule” when using deadly force in lawful self-defense, created some important absolute presumptions that gave a person the right to use deadly force in specified situations, and most importantly, from the standpoint of this article – created a new section, F.S. 776.032 that granted immunity from arrest and prosecution to all persons who acted according to the law as set forth in the other revised subsections: 776.013; 776.012; and 776.031. The pertinent portions of 776.032 are as follows:
“(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer . . . . As used in this subsection, the term criminal prosecution includes arresting, detaining in custody, and charging or prosecuting the defendant.”
The law seemed clear enough on its face, but as in many instances with a law, in practice it left quite a few questions open for debate. The primary questions have been how to apply the immunity provisions, and what the procedure should be in applying them.
The first court to venture an opinion on this subject was the First District in Peterson v. State, 983 So.2d 27 (Fla. 1DCA 2008). Peterson had been charged with attempted first degree murder, however, he contended he was acting in lawful self defense under the new statutory sections in C. 776, and was therefore entitled to immunity. He raised the immunity issue pre-trial by a motion to dismiss. The trial court, deciding that there were no formalized rules yet enacted to define the procedure to be used in such a case held an evidentiary hearing using the same procedures and burden that applied in deciding a motion to suppress a confession, and after taking testimony made a determination that the testimony of the alleged victim was to be credited as “clear and reasonable”, and that the facts as found, did not establish self defense immunity as a matter of law. The Defendant then filed for Prohibition in the District Court of Appeal.
In denying prohibition the First District specifically approved of the procedure used by the trial court, rejected the State’s argument that the motion had to follow the procedure in Rule 3.190(c)(4), Fla.R.Cr.P., and held that in making the changes to C. 776 the Legislature had intended to establish a “true immunity and not merely an affirmative defense”. Because of this a trial court was required to: “(D)ecide the matter by confronting and weighing only factual disputes. The court may not deny a motion simply because factual disputes exist.” . . . . “Likewise, we hold that a defendant may raise the question of statutory immunity pretrial and, when such a claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches.” Peterson, supra at 30.
While Peterson remains the law in the First District, a series of cases came out of the Fourth District that took a contrary position. The first and primary case on that is Velasquez v. State, 34 Fla. L. Weekly D266 (Fla. 4DCA 2009). Like Peterson, the Velasquez case involved a charge of attempted murder where the Defendant claimed immunity under the self defense statutes, and filed a motion to dismiss supported by affidavit, asserting that immunity. Like the Peterson case, the trial court held a full evidentiary hearing on the motion, determining by virtue of the strong contrary evidence put on by the State, that the Defendant “ had not established by a preponderance of the evidence that he was immune from prosecution under section 776.032.”
Rather than just deny prohibition on the same basis as found by the trial court – ie: that the evidence did not establish immunity by a preponderance, or that the State had overcome immunity by a preponderance – the Fourth District went gratuitously further, and certified conflict with Peterson, holding that since there were no formalized rules pertaining to the raising of immunity – a motion to dismiss under the immunity statute in F.S.776.032 must be decided in the same way as a “(c)(4) motion” under Rule 3.190, Fla.R.Cr.P., and therefore since the State had presented evidence disputing the factual basis of the immunity – the motion was required to be denied. (Judge Polen concurred specially indicating his view that Peterson was correctly decided, but that the burden was not carried in Velasquez). The Fourth District has since reaffirmed Velasquez in Dennis v. State, 34 Fla. L. Weekly D537 (Fla. 4DCA 2009), with the Fourth District stating: “a motion to dismiss based on statutory immunity is properly denied when there are disputed issues of material fact”
With the First District and Fourth District going head-to-head, the Fifth District decided the identical question by denying certiorari in the case of Gray v. State, 2009 WL 1490835 (Fla.. 5DCA, May 29, 2009). The Fifth District squarely sided with the Peterson case, and held that in the case before it, the trial court used the correct standard in denying a motion to dismiss based on F.S. 776.032, to wit: that the defendant had not met his burden in establishing immunity “by a preponderance”. Then, recognizing that there was conflict with the Fourth District, and that the question ultimately needed to be resolved by the Florida Supreme Court – the Fifth District declined to certify conflict stating that it would pass on that question until it was raised by a plenary appeal.
So – who got it right? The First District (and Fifth), or the Fourth District?
Well, to determine that question, and assuming Peterson was correct in using the format of a motion to suppress – we should first jump to what the actual procedure is on a motion to suppress a confession. Who has the burden, and what must be shown?
In Florida, the law is clear that on a motion to suppress a confession it is the State's burden to establish by a preponderance of the evidence that a defendant knowingly, intelligently, and voluntarily waived his or her Miranda rights. Bevel v. State, 983 So.2d 505, 515 (Fla. 2008). So, if the law is clear that it is the State’s burden – why do both the Peterson and Velasquez decisions refer to the “defendant’s” failure to “establish by a preponderance”? Shouldn’t they have said that the State “met it’s burden”, and established that immunity did not apply, by a preponderance? Was this a mistake in wording, and if not, how did the burden of proof suddenly become switched? More importantly – if there is “no procedure” on how to handle an immunity claim – what have we been doing in Florida for the last thirty or so years when a Fifth Amendment issue on immunity pops up? Do we automatically deny it if the State contests it? And, in a traditional (ie: Fifth Amendment) immunity claim – what does the law say about who has the burden of proof?
Well, the starting point for any immunity question (assuming we’re talking about a “true” immunity vs. a “qualified” immunity) is the case of Kastigar v. United States, 406 U.S. 441 (1972). In Kastigar, the United States Supreme Court held:
“Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence." . . . . “This burden of proof, which we reaffirm as appropriate, is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.” Kastigar, at 460.
The holding in Kastigar was acknowledged in Florida in Holland v. State, 773 So. 2d 1065, 1072 (Fla. 2000); and followed in Zile v. State, 710 So.2d 729, 733 (Fla. 4DCA 1998), where the Fourth District stated:
“This burden of proof, which we reaffirm as appropriate, is not limited to a negation or taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.”
So, if the immunity in 776.032 is a “true immunity”, as the Legislature obviously intended it to be, and Peterson held it to be – it seems that formalized rules or not – Florida courts, including the Fourth District, have not had previous problems following the procedure set out in Kastigar. But, what if the “immunity” in 776.032 is not a “true immunity”. What if it’s a “qualified immunity” as in a federal civil rights action under 42 USC 1983? Or, what if it’s a “statutory immunity” comparable to the Foreign Sovereign Immunities Act (FSIA), in 28 USC 1330?
If we take the qualified immunity route under the federal Civil Rights Act we find a somewhat inappropriate but still workable analogy, as there the civil defendant has the initial "burden to establish that he was acting within the scope of discretionary authority, and if accomplished, the burden then shifts to the plaintiff to show that the [defendant's] action violated the plaintiff's rights in light of clearly established law. Vaughan v. Fla. Dept. of Agriculture, 920 So. 2d 650, 651-652 (Fla. 4DCA 2005). Subjective considerations are irrelevant. Town of Southwest Ranches v. Kalam, 980 So.2d 1121 (Fla. 4DCA 2008). In that sense, a parallel could be drawn to the procedure in a “true immunity” case since a defendant who asserts a qualified immunity defense under the Civil Rights Act “is not required to meet its (summary judgment) burden for a claim of immunity. It is sufficient that the movant in good faith pleads that it is entitled to absolute or qualified immunity. Once the [movant] asserts this affirmative defense, the burden shifts to the plaintiff to rebut it." Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007). Furthermore, the qualified immunity defense “ protects all but the plainly incompetent or those who knowingly violate the law.” Henry v. Purnell, 501 F.3d 374, 377 (4th Cir. 2007).
On the other hand, if we take the approach available under the federal Foreign Sovereign Immunities Act we find a somewhat similar scenario where the initial burden of going forward rests with the party asserting immunity, and then shifts to the party opposing it:
“although a party claiming FSIA immunity retains the ultimate burden of persuasion on immunity, it need only present a prima facie case that it is a foreign state; and, if it does, the burden shifts to the party opposing immunity to present evidence that one of the exceptions to immunity applies” Kelly v. Syria Shell Petroleum Dev., 213 F.3d 841, 847 (5th Cir. 2000)
However, unlike Kastigar, in an FSIA hearing the burden of proof always rests with the party asserting the immunity. Keller v. Central Bank of Nigeria, 277 F.3d 811, 815 (6th Cir. 2002).
Conclusion:
So, what’s the final analysis of what procedure should be employed to determine immunity under F.S. 776.032?
Well, key to that is the understanding that most of the changes in Chapter 776 were enacted in order to enlarge the protections for citizens using deadly force in lawful self defense situations, and prevent their arrest or prosecution for doing so. Furthermore, when you consider that almost all of those situations, if prosecuted, carry a mandatory minimum prison sentence pursuant to F.S. 775.087 ranging from three years to life – it seems abundantly clear that anything less than a full Kastigar hearing – with the burden of proof resting squarely on the shoulders of the State – will virtually emasculate the statute, and leave the immunity defense as mere bunch of empty words. That’s the clear effect of the Fourth District’s opinion in Velasquez. Therefore, since Velasquez certified direct conflict with the opinion in Peterson – the logical conclusion is that sooner or later the Florida Supreme Court is going to have to settle the debate, determine which party really has the burden of proof by a preponderance, and clarify the procedure to be used. Likewise, if the “immunity” granted by F.S. 776.032 is to be more than a collection of empty words – as the Legislature clearly intended it to be – then a defendant must have a direct remedy by interlocutory appeal or certiorari if his or her motion to dismiss is denied. Otherwise, the statute is worthless, and the effect of such a denial would be akin to a judicial rewording (more like a major deletion of wording) of the statute that violates Article II, Section 3, of the Florida Constitution’s Separation of Powers clause.
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