Friday, August 28, 2015

Florida Governor Declares State of Emergency on August 28, 2015 -- explained

Florida Governor Declares State of Emergency.  What does it mean to gun owners?
copyright 2015 by jon gutmacher

On August 28, 2015, Governor Scott of Florida declared a "state of emergency" pursuant to his powers under F.S. 252.36  because of the possible damage of the approaching hurricane.  I have read the Proclaimation, and at this time it does NOT restrict firearms or other weapons.   Thus,  there are currently no changes in normal Florida laws on sale or possession.  If in doubt on what those are -- please refer to my book.  It is considered the "bible" on that subject.

The statute states the Governor "may" make such restrictions, although you would still be able to carry concealed per 790.01 if you were actually "evacuating" an area during a mandatory evacuation.  No mandatory evacuation currently (8/28/15) exists.

And just as a matter of clarification:   only a "local" state of emergency declared by a sheriff, board of county commissioners, or municipality has automatic provisions that affect firearm sales and public carry.  Not -- those issued by the Governor.  The Governor gets to chose what he or she wants, or doesn't want in the declaration.

I reproduce the critical  portions of the statute [252.36] here, if you care to look:

252.36 Emergency management powers of the Governor.—

(2) A state of emergency shall be declared by executive order or proclamation of the Governor if she or he finds an emergency has occurred or that the occurrence or the threat thereof is imminent. The state of emergency shall continue until the Governor finds that the threat or danger has been dealt with to the extent that the emergency conditions no longer exist and she or he terminates the state of emergency by executive order or proclamation, but no state of emergency may continue for longer than 60 days unless renewed by the Governor. The Legislature by concurrent resolution may terminate a state of emergency at any time. Thereupon, the Governor shall issue an executive order or proclamation ending the state of emergency. All executive orders or proclamations issued under this section shall indicate the nature of the emergency, the area or areas threatened, and the conditions which have brought the emergency about or which make possible its termination. An executive order or proclamation shall be promptly disseminated by means calculated to bring its contents to the attention of the general public; and, unless the circumstances attendant upon the emergency prevent or impede such filing, the order or proclamation shall be filed promptly with the Department of State and in the offices of the county commissioners in the counties to which the order or proclamation applies.

5) In addition to any other powers conferred upon the Governor by law, she or he may:

(h) Suspend or limit the sale, dispensing, or transportation of alcoholic beverages, firearms, explosives, and combustibles. However, nothing contained in ss. 252.31-252.90 shall be construed to authorize the seizure, taking, or confiscation of firearms that are lawfully possessed, unless a person is engaged in the commission of a criminal act.
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Copyright allowance:
You may freely distribute copies of this memo to anyone as long as you do so in whole, including my authorship and copyright.   Likewise,  if the hurricane actually struck, the Governor could add measures.  Thus,  this memo is date specific.

Thursday, August 20, 2015

Preliminary August 2015 book update

           Florida Firearms – Law, Use & Ownership – 8th edition
                                       August 2015 interim update
                              copyright 2015 by jon gutmacher

page 27
Henderson v.  United States (U.S.Sup.Ct.  May 18, 2015)

Federal law has always left open the question whether a person convicted of a felony who has not disposed of his or her firearms by the time of conviction  – can lawfully transfer them to someone who is not prohibited.  Different federal circuits had reached different conclusions.  The Henderson case has now settled that as the United States Supreme Court held that where an individual is convicted of a felony a court does not violate federal law, and has equitable jurisdiction to order his or her firearms be transferred to a third party where the court is satisfied the firearms will not be returned to the felon. [In Henderson, the firearms were being held by the court pending the outcome of the case].   The decision should clarify that a court may allow a felon to transfer weapons and firearms, as long as such is not inequitable.
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chapter five in general:

In 2015 the Legislature amended F.S. 790.01.  The amendment is a major clarification and revision to the statute in three (3) distinct areas, as follows:

The prior version of 790.01(1) and (2) passed in 2006, provided that: “except as provided in subsection (4), a person who carries” a concealed weapon or concealed firearm commits a crime.
790.01(3) Then stated that 790.01 did not apply to a CWL holder.
790.01(4) Then made it lawful to carry certain non-lethal weapons for self defense concealed without a CWL such as a Taser type weapon, self defense stun guns, and self defense pepper sprays as defined by statute.

Because of the statutory wording,  the Supreme Court of Florida in the case of Mackey v.  State, 124 So.  3d 176 (Fla.  2013), held that proof of a valid CWL was an “affirmative defense” to concealed carry rather than an element of the crime.  Thus, in a prosecution under the 2006 statute, it was up to you to prove you had a valid CWL at the time of arrest to beat a concealed weapons charge.  There are other important aspects of the decision, including an officer’s right to arrest for illegal concealed carry – but those issues are more fact specific, and appropriate for a lawyer rather than a discussion, here.

However, the 2015 amendment changed the wording in F.S. 790.01(1) and (2) to now provide that “ a person who is not licensed under s.  790.06" and carries a concealed weapon or firearm commits a crime.

Thus, this simple change in wording should now make having a CWL an “element” of the crime rather than a defense.  In other words – it should overrule that portion of the Mackey decision I just discussed.
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page 123

Likewise, because subsection (3) was worded to exclude CWL holders, it seemed to exclude a CWL holder from the allowances in subsection (4). [Well . . . it didn’t exclude a CWL from carrying a concealed Taser or pepper spray, etc. – but a literal reading would mean that a CWL holder could not carry these concealed in any place excluded by 790.06(12), whereas someone without a CWL didn’t have that same restriction.  Something that made no sense, was not intended, and had nothing to do with the purpose of the 2006 amendment.]  Now that this provision is eliminated, the problem for CWL holders has also been eliminated.
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page 149

Another new subsection created by the amendment cures the serious complaint  that in a mandatory evacuation, the law previously prohibited anyone from having a firearm on public property during the evacuation.  Thus, if you were in your vehicle fleeing a major disaster, and were on a public road – you were illegal, even if you had a CWL.  Probably the time you needed your firearm the most!

So, in 2015, the Legislature finally got around to amending F.S. 790.01, with some important input from Eric Friday at Florida Carry, and Marion Hammer at Unified Sportsmen of Florida, and
the amended subsection in 790.01(3)(a) now provides that you may carry a “concealed” weapon or firearm “on or about your person” during a mandatory evacuation “while in the act of evacuating”.  No CWL is required – however, the weapon or firearm must be kept concealed.  Thus, you can now carry a firearm or other weapon while you are actually in the process of evacuating – even on public streets and property.

Last: F.S. 790.01(3)(b), remained untouched, and  keeps the exception that allows for concealed carry of certain non-lethal self defense weapons as listed, by non-CWL holders.

A really great piece of legislation, huh?
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p69 & p114

Bonidy v.  United States Postal Service (10th Cir.  June 26, 2015)

This recent case held that postal regulations forbidding the possession of a firearm or other weapon on post office property extends to a post office parking lot.  The case is the usual elitist stretch by an unfriendly federal appellate court holding that certain elements of the federal bench will hold back the Second Amendment as long as they can.  (yeah – I’m prejudiced) The court actually held that the parking lot was a “building” within the meaning of post office regulations, and even if it wasn’t – it was a “sensitive area” that allowed regulations to overcome a constitutional amendment!!!   I could go into a lot more detail here – but – we all know this case is bullshit, and that a certain element of society and government is at war with gun owners.  Another reason why no federal judge should ever have “tenure”.  They should all face election, just like anyone else.  For what it’s worth – the lower federal district court held that the parking lot was not a “building”, and certainly wasn’t a sensitive area.  Likewise, while this case is considered as “authority” on the question – other federal courts outside the Tenth Circuit are free to agree or differ on this holding.   When you consider that another federal statute allows a CWL holder to have a firearm in their vehicle on school property – you start to understand how totally hypocritical this decision really is.  To his credit, Judge Tymkovich, contributed an excellent dissent to the Opinion.   All the same – while it is totally legal to have a securely encased firearm in your vehicle in a post office parking lot per Florida law – federal law may – or may not – be contrary.  If you’re packing there, sure as hell, don’t tell anyone!

On the other hand,  if you use or threaten to use a firearm in self defense in a post office parking lot, there is an open question whether this constitutes a "criminal act" because it may be unlawful under federal law (but not Florida law) -- thus making retreat a necessary predicate unless retreat would be futile.  This is due to the 2014 changes in Chapter 776 that I tried warning everyone about.  (and nobody listened).

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p149

Security Guards

In 2014 the Legislature amended F.S.493.6115 (6) as follows:
 In addition to any other firearm approved by the department, a licensee who has been issued a Class “G” license may carry a .38 caliber revolver; or a .380 caliber or 9 millimeter semiautomatic pistol; or a .357 caliber revolver with .38 caliber ammunition only; or a .40 caliber handgun; or a .45 ACP handgun while performing duties authorized under this chapter. A licensee may not carry more than two firearms upon her or his person when performing her or his duties. A licensee may only carry a firearm of the specific type and caliber with which she or he is qualified pursuant to the firearms training referenced in subsection (8) or s. 493.6113(3)

subsection (9) also requires that any discharge of a firearm while on duty requires within 5 working days, submit to the department an explanation describing the nature of the incident, the necessity for using the firearm, and a copy of any report prepared by a law enforcement agency. The department may revoke or suspend the Class “G” licensee’s license and the licensed agency’s agency license if this requirement is not met.



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p102-103

Pennamon v.  State , (Fla.  1DCA January 2, 2015), held that a parking lot surrounding a person’s regular place of business qualifies as their “place of business” pursuant to F.S. 790.25(3)(n), allowing open or concealed carry regardless of a CWL.  While this would negate a prosecution for concealed carry by an employee (with or without a CWL) – it does not insulate an individual from discipline from the employer if such is against company policy.
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p263

In the July 2015 decision of Bretherick v.  State, (Fla.  July 9, 2015), the Florida Supreme Court held that the burden of proof in an immunity hearing is on the defendant, and not the State.  This is contrary to the traditional view in an immunity case, but in my opinion, was based more on politics than valid legal reasoning.  Under any circumstance, the issue is settled in Florida unless the Legislature wants to change it.

Thursday, August 13, 2015

What's coming in the 2016 Florida legislative session (so far), and some background

Some background, and what’s coming in the 2016 Florida legislative session:
copyright 2015 by jon gutmacher

Due to recent state legislation and court rulings, 8 states now have provisions allowing the carrying of concealed weapons on public post-secondary campuses. These states are Colorado, Idaho, Kansas, Mississippi, Oregon, Utah, Wisconsin, and recently, Texas.  According to the National Conference of State Legislatures, another 23 states allow colleges and universities to decide for themselves whether to allow guns on campus.

Florida already permits any person over 18 years of age (who is not otherwise prohibited by law from owning a firearm) to possess a securely encased firearm in their vehicle on a college or university campus.  Likewise, anyone, including student who is 21 years of age, or older, who possesses a valid Florida Concealed Weapons License (CWL) may carry a firearm concealed on their person in most places for self defense reasons – but not currently on campus.  The proposed legislation in the recently filed Senate Bill 68, and companion House Bill 4001 would change that to allow a CWL holder to carry anywhere on a college or university campus other than  school athletic events and areas which are primarily used for the consumption of alcohol.

While there is vocal opposition from most college and university police departments, the history of concealed license carry has shown that in almost all scenarios, crime and accidents rarely increase by permitting expanded CWL carry, and in most cases, statistically decrease.  Moreover, violent crime on campus is on a definite rise, and it makes little sense to leave students unable to defend themself from rape, kidnap, and robbery.

On the other hand, it might be an excellent idea to include some amendments to the offered legislation such as:   no firearms at any campus party or gathering where alcohol is served; and that firearms on campus shall be kept in a locked gun safe if left outside the presence of the CWL holder, or kept out of sight in a locked vehicle in a separately locked compartment such as a glove box, console, or trunk.

Likewise, the recently filed Senate Bill 72 is a well thought out, and well drafted bill that would allow a school to designate one or more “school safety designees” to carry concealed on school grounds.  These individuals would be required to have special training, and could be staff, hired, or volunteers.  The only shortcoming in this otherwise excellent bill is the failure to include “G” licensed security guards to provide armed protection to schools – especially as such is sorely needed in the private and church school sector.  I would urge you to contact Florida State Senator Greg Evers (the sponsor), and Marion Hammer of Unified Sportsmen of Florida to push such an amendment to this significant and needed legislation.

Friday, July 3, 2015

Universal Background Checks -- Bah! Humbug!

Ever wonder why the anti-gunners are so intent on across the board ("universal") background checks -- even when we are  buying, trading, gifting, or just swapping guns privately?   It's not a gun safety issue.  The hidden agenda is to eventually have universal gun registration . . .  and then if the anti gunners play it really right . . .  after the next big tragedy . . .   they'll get legislation passed, get  a list of all the guns, and then, one day, come knocking on your door to collect them.

Don't think it can happen?

Sure can.  They've done it all over the world.  They did it in New York.  They've done it in other states and cities.  If they can stack the Supreme Court the wrong way and get just two changed votes  . . .   or get a 2/3 majority Democratic Congress and president . . .  it could happen.

You see, the big problems -- funding mental health --  funding and requiring drug rehab via civil not criminal penalties --  fixing the tax code so that big corporations aren't rewarded by building factories overseas rather than in the USA, so the jobs come back to the cities  -- these are just a few of the things the big money lobbyists control and prevent.  Politicians are in it today -- first, for themselves . . .  then for their Party . . .  and then . . .  maybe . . .  (assuming there's anything left) . . . for the country.

Guns have never been the problem.  Keeping them from honest people has been the real problem. Every time we extend gun ownership or possession the politicians, liberals, and anti-gunners cry it will cause a "Wild West" in the streets.  And every time, instead,  we see the crime rate go down, statistically, and their fears are unrealized.  Plus, sales between individuals are statistically not a big deal.  If someone who is prohibited buys a gun privately -- they've just committed a five year felony with a mandatory federal prison sentence.  If they're willing to do that -- you better believe they're gonna get it, anyway,   Home and auto burglaries will just go up, so they can steal them.  Gun stores and pawn shops will become targets. And the usual will happen -- criminals will have them -- citizens won't.

So,  next time somebody says we should have "universal" background checks -- tell them where to go.  The Second Amendment is one of the timeless building blocks that keeps this country free.  We don't need less of it -- we need more.

Wednesday, June 17, 2015

A New Post -- really! Explaining non-deadly threats in Florida.

Those of you who actually are rumored to have read my blog have (on occasion)  emailed to make sure I am alive, and ask why I haven't posted anything for a while.  In order to answer that question, and more, First:  I am alive. I looked in the mirror -- and whoever the hell was in there waved back.  I'm sure it was me.   Second:  I rarely write unless I have something important to say, which is even more rare.   and Third:  I guess I haven't had anything important to say for quite some time.   However,  I actually got an interesting question by email -- that is also actually worth sharing.   And so . . .  for those of you hungry for my arguable "words of wisdom" -- your prayers have been answered -- or perhaps, alternatively -- greatest fears have been confirmed:   I write again!


The email question:   "Great book, I learned a lot! The one thing that puzzles me it what is a threat of "Non-deadly force". The only thing I can think of is "stop or I will have to use pepper spray." But what if I do not have pepper spray, what is one to say that is "non-deadly" threat?".   (thanks to David for sending it)



The Answer:   The whole thing royally screwed up by the 2014 Legislature is stupid -- but to explain:  a threat of non-deadly force is just a threat -- it doesn't need something to back it up in reality.  So -- where non-deadly force would be justified -- you should be able to "threaten"  (although not necessarily use) any non-deadly force that would be legally justified -- which should include:  pepper spray, tasers, stun guns, or whatever else fits.  It doesn't matter it's a bluff.  It doesn't matter that you don't have the actual weapon.   If it qualifies as a "threat" -- it's still a threat, weapon or not.  Whether a threat of non-deadly force, even in a non-deadly force situation,  is a great idea --  is another thing.  Whether it will escalate the situation is always an open question.   Whether the responding cop thinks it's justified -- who the hell knows.  The law is still quite imperfect, and immunity is a joke, unless the Florida Supreme Court changes some current interpretations.  Of course,  and on the other hand,  if any type burglary is about to go down -- a "threat"  (not the "use") of deadly force is lawful -- thus display of a firearm would be lawful if your apprehension was reasonable.  Use would probably not be permitted unless it escalated to something lots more serious.

Hope that helps.   If not -- read the last two chapters again.  It may just stimulate those long unused brain cells.   All my best.
 

jon gutmacher


p.s:  By the way -- the free internet book update will come out in mid to late July.  Not much new unless you are fleeing from a hurricane.  In that case,  you can now bring your gun -- but it must be concealed -- even without a CWL.  More on that in July.
 
 

Monday, January 26, 2015

A quick comment on steering wheel holsters

I just did an article for the Florida Association of State Troopers on steering wheel holsters, and was thinking -- why would anyone really want one?

Now . . .  I know there are several reasons it seems like a great idea.  Hidden from view.  (mostly) Very quick draw.  Impresses all your friends, and looks great on a truck . . . but besides that . . . why not the console (assuming you've got one)?  Hidden.  Quick.  Very legal.  Stock.

OK . . . so you know my preference in life -- now here comes my warning and "fix" on steering wheel holsters.  They're not "securely encased" unless the gun is strapped inside one.  Since most of these don't come with a strap -- you better add one.  Velcro should be easy.  All you need is a good quality outdoor glue, and a pair of scissors -- and you're in business!   On the other hand -- noisy when you open the damn thing, and if you use the industrial strength -- you may be in for a big surprise when you try to get it open.

On the other hand -- you reply:  "Who cares?   I have my CWL!   I don't need to be securely encased!"

Well, Big Kahuna . . .  partially correct.

You see -- if any part of the firearm can be seen from outside the vehicle -- it's probably "open carry".  Certainly,  at least a question of fact that could result in your arrest.  If it was "securely encased" -- it could be open -- as long as strapped.  So -- score one for Gutmacher.

Next problem -- since the access to the gun is way too damn fast -- and since there is a real good chance any officer stopping your vehicle who sees it will go instantly ballistic because of that proximity and accessibility -- it is not the safest place to have a firearm unless your hands are placed firmly on top of the steering wheel with your license, etc -- when the officer approaches.

We're talking about practicalities here.  I am a very practical person.  I want to survive.  Far too many cops shooting unarmed civilians due to the crazy lunatics we have running around today!  Believe me, these officers are stressed out on what some people are doing -- and since they have no idea if you're one of the good guys, or the bad guys when they stop you -- I go for safety first.

That being said -- you're gonna do whatever you're gonna do.  At least now -- you know the law, and the risks.   Have a great day!

Thursday, January 22, 2015

Guns by CWL holders at colleges and universities in Florida

Talk about coincidence,  and thinking of the same problems at the same time -- my last post was a substantial bitch about not being able to carry with a CWL on the premises of a college, university, or especially vocational school -- especially at night.

WHAMMO!!!  

And then came HB 4005 -- a bill just proposed in the Florida Legislature -- that needs your support (post it on Facebook,  urge folks to write their Florida legislators).   The bill eliminated subsection  790.06(12)(a)(13) that prohibits carry at colleges and universities.

Now,  while you would think that takes care of the problem -- it doesn't.

Why?

Well, because the bill does not have a "preamble" that actually states the legislative purpose -- it leaves the legislative purpose up for interpretation by the courts.  Unless they find that the legislative purpose is clearly to allow CWL holders to carry at these locations -- F.S. 790.115 will still control, and prohibit such carry.  Which brings up the next point -- Do you want to be the "test case" facing a third degree felony if the decision goes the other way?

Of course not!  

So,  what's the fix?

Well, the fix is really easy -- plus,  I highly recommend adding "vocational schools" into the bill, because those often take place at night in not the best places in town, with mostly adult students.
So, I have two possible fixes -- the simple one being a preamble inserted at the very beginning of the bill, with no other changes:

"Whereas the Florida Legislature believes it is in the best interest of the public that persons holding valid Concealed Weapon Licenses pursuant to section 790.06 or 790.015 of  the Florida Statutes not be prohibited from lawful possession on the premises of colleges, universities, and  adult vocational schools,  therefore"  [be it enacted by the Legislature of the State of Florida] . . . .

The more complex fix is by renumbering subsection (2) of the bill as subsection (3), and inserting a new subsection (2), as follows:

"section (2), paragraph (2)(a) of section 790.115, is amended by adding sub-subsection (4) to read:  (4):  On the premises of any college, university, or adult vocational school, by a person holding a valid Concealed Weapons License pursuant to section 790.06, or 790.015.

So -- if you think my idea is a good one -- or you just support allowing a CWL holder to have a concealed firearm on a university, college, or vocational school campus -- send a letter to your local rep at the Florida House and Florida Senate -- and include a copy of this blog post, and let your friends on Facebook and elsewhere know -- this is a really important bill to actively support.  Give em my blog post address so they can read it for themselves:  http://orlandocriminallawyer.blogspot.com/2015/01/guns-by-cwl-holders-at-colleges-and.html

Alabama and Georgia already have this -- and it's working fine.  It will here, as well.