Friday, August 12, 2016

Critically important case on Stand Your Ground Immunity in a civil suit in Florida

Critically important Civil "Stand Your Ground" immunity appeal decided in Florida
copyright 2016 by jon gutmacher

In Professional Roofing & Sales , Inc. v. Flemmings, 138 So.3d 524 (Fla. 3DCA 2014), the Third District Court of Appeal held that even though a defendant had been granted "Stand Your Ground" immunity  under F.S. 776.032 in a criminal case -- he or she could still be sued civilly, and the issue of immunity be relitigated.  Of course,  if such a person were sued by several persons independently, the issue of immunity would then be relitigated numerous times -- and the burden on an individual already found to be immune from criminal prosecution would be overwhelming.  Something that many legal jurists found to be repugnant to the immunity grant, and inconsistent with the intent of the Legislature.  However,  it was the law in Florida until very recently, when the Second District Court of Appeal, in Patel v. Kumar, 41 Fla. L.Weekly D1541 (Fla. 2DCA 2016),  held completely opposite of the Third District.

In the Patel case, Mr. Patel had been attacked in a bar without provocation , and Patel responded by defensively punching his attacker,  Mr. Kumar, in the head.  Unfortunately for Kumar,  Patel had a glass in his hand when he was attacked, and when he threw his defensive punch, the glass (still in his hand) shattered, causing serious injury to Mr. Kumar.   The State (in its infinite wisdom) prosecuted Mr. Patel for a felony,  with the court eventually dismissing the case based on Stand Your Ground immunity after an extensive evidentiary hearing, and an unsuccessful appeal was taken by the State and denied.  (actually, the litigation history was a bit more complex, but unnecessary to this article)

In a well thought out Opinion by the very respected Judge Northcutt (and concurring opinion of Judge Badalamenti), the Second District held that once a Stand Your Ground immunity is established -- it applies to any subsequent cases.  Thus,  there is now a division of authority in Florida on the issue, and it is one that is sure to be addressed by the Florida Supreme Court at some point in the future, because of its importance.  If you're in the jurisdiction of the Third District (Miami area) -- you're in unfriendly legal territory because the decision of the Third District is binding there.  Likewise, if you're in the jurisdiction of the Second District (Tampa area) you are in an area where the Second District decision is binding.  Everywhere else in Florida -- each court is permitted to rule as the judge thinks is proper -- until their own District Court of Appeal, or the Florida Supreme Court makes a ruling.

This was a critically important decision for gun owners -- and I can tell you that the issues involved were legally very complex.  Big congratulations to the attorneys for Mr. Patel.  Stephen L. Romine [Clearwater], and Kimberley M. Kohn [Tampa] for a job well done.


** You may freely reproduce and distribute this article for non-commercial purposes only so long as you acknowledge my authorship and copyright

Major Florida case on return of firearms seized by law enforcement

Every now and then there's a really "super" case that comes out.  Sometimes factually great.  Sometimes legally great.   Sometimes just the breadth of the application of the case is just terrific.  This case hits a "home run" in all those areas.  The style of the case is Dougan v. Bradshaw,  41 Fla.L.Weekly D1605 (Fla. 4DCA 2016), and is a case out of Palm Beach decided on July 13, 2016.  Before I go any further,  let me congratulate the attorney for the winning appellant -- Cord Byrd, Esq., of Jacksonville Beach, Florida, and Judge Damoorgian for a really excellent and thoughtful Opinion.   One heck of a nice job!

So . . .  what's the story?

Well . . .  it seems that Mr. Dougan may have been talking about suicide, or giving an indication he was considering it to the extent that family members called the Palm Beach Sheriff's Office to send a deputy.  In doing a "safety check",  the deputy or deputies decided there was not enough indication that Mr. Dougan was actually a danger to himself to take him for psychiatric observation, however, they did seize all his firearms -- purely as a safety measure.  A fairly common practice across the State that has no legal support.  However,  that's not the issue.   The issue was days, weeks, and months later -- when Mr. Dougan made requests to the Sheriff's Office to obtain his firearms back -- they told him it was their policy not to do that unless he first obtained a "court order" to return them. Again -- a practice common across the State -- and again, totally without any legal support.

So, apparently Mr. Dougan is not the kind of person who takes that b.s. lying down -- and managed to find a pro-Second Amendment attorney who would not only take the case -- but smart enough to know how to win it.  He sued the Sheriff in a separate suit called a "replevin" to get back the guns -- which he won,  thereby getting the "court order" the Sheriff required.  And then (and this is the really good part) -- in another case, he sued the Sheriff for money damages, plus an injunction to stop the illegal policy of requiring a court order pursuant to Florida’s “Preemption Law”!   BRAVO!!!   WAY TO GO!!!   GREAT LEGAL THINKING!

Anyway -- in case you're not aware -- the cops have a perfect right to take any firearms involved in an arrest, when serving a domestic violence or similar type injunction, when observed being used in a “breach of the peace”, or seized per a search warrant.  Otherwise, there is no current lawful authority to seize firearms or weapons, or keep them for “safe keeping” reasons under Florida law, other than safekeeping of what appears to be “abandoned property”, or where other property somehow comes into the hands of the police in a voluntary fashion.  Thus, any “policy” they create about firearms runs afoul of Florida’s preemption law – which states that only the Legislature can make laws and policies pertaining to firearms.

Despite this,  the trial court dismissed Dougan’s lawsuit for damages, and left him without any further recourse other than by appeal – which he took.  In reversing the dismissal, the Fourth District Court of Appeal held that Mr.  Dougan had a perfect legal right to sue the Sheriff for damages and injunctive relief under the Preemption Law as there were no statutes that required a court order under the facts of the case, thus the Preemption Law prevented the Sheriff from creating a policy that made such a requirement.  Moreover, the appellate court held that a mental health response by law enforcement to an individual who may be threatening or contemplating suicide is also not ordinarily a “breach of the peace” – because a “breach of the peace” normally  requires the   commission of some type of crime.

So . . .  what’s the effect of this case?

Well . . .  obviously, if law enforcement has your firearms for any purpose other than holding them in evidence pursuant to a warrant, arrest, injunction, breach of the peace, or probably if they are being held in evidence for use in an actual criminal case – they need to give them back to you when you ask for them, without any court order.  Of course – you might need to show they were yours.  You’d  certainly need to make arrangements to pick them up.  But, the time and expense of getting a court order would be unnecessary – unless the law enforcement agency wanted to get sued for damages.

Last . . .  but not least, a question: Should there be a provision in Florida law that allows law enforcement to seize firearms and other weapons when responding to a “Baker Act” type situation?  My opinion is that if the police have probable cause to believe the individual needs to be taken for psychiatric observation, and takes him or her in – sure, as long as the firearms don't also belong to another family member who want to keep them for self defense.  Otherwise – only if the individual owner(s) voluntarily OK  it.  In the first instance, I think the individual should be required to obtain a court order to get them back.  In the second – no court order required after 24 hours.  Just my personal opinion.

But, hey!   Neat case, huh?

Thursday, August 11, 2016

Interesting Legal question on self defense mostly for attorneys

I responded to an interesting question to attorneys in one of the Second Amendment groups I belong to.  If you're an attorney -- it's something to think about, and has multiple facets I did not discuss because of  how complicated it can legally become depending on the exact facts involved.  But, no matter what your legal experience -- it's an interesting issue to think about:  Here's my response with the question integrated into my answer:


You ask if a violation of law in the form of disobeying a "no firearms" sign would be admissible in a self defense case, and my response as far as Florida law goes would be that currently it "should" not, as it would not ordinarily be considered a "trespass", although there is no case law on it.  On the other hand, if it were a trespass, or other violation of law, then it would be an open question as Florida law would then certainly impose the "retreat rule" under the 2014 changes to C.776.   The next issue would be whether F.S. 90.803 would bar admissibility, or otherwise modify the way it was admitted, and any jury instructions on the duty to retreat, or whether it is really a "prior bad act" or simply too easily confused by the jury as an attack on character.  In other words -- at least in Florida, the legal issues are extremely complicated.  At the very least,  a motion in limine would have to be filed, and heard pre-trial, with all objections being preserved including during the charge conference,  and after jury instructions are given.

Tuesday, August 9, 2016

Federal 11th Circuit joins Florida in interpretation of what is a "conviction".

A “conviction” means that you were actually convicted of the crime.  In Florida this means you must have had an “adjudication” regardless of whether you plead “guilty” or “no contest”.  Thus, getting a "withheld adjudication" is not a "conviction" under Florida law.   Clark v.  United States, 184 So.3d 1107 (Fla.  2016).  Federal law is supposed to follow the state’s interpretation of its own laws, but for a long period it did not.   However, on May 11, 2016, the federal Eleventh Circuit Court of Appeal, based on the Florida case,  reversed its prior position, and in United States v.  Clark, docket number 13-15874, (11th Cir.  2016), conformed to the Opinion of the Florida Supreme Court. Federal and Florida law now interpret a "withheld adjudication" as not being a "conviction" for "felon in possession" cases any more,  regardless of whether the plea was one of "guilty" or one of "no contest".  Likewise,  a misdemeanor domestic violence offense would not bar firearms ownership with a "withheld adjudication" under federal law, at least once the Florida 3 year prohibition on firearms purchasing ends.  (it is totally unsettled whether a state imposed ban on purchase from a dealer but not a private sale would impose a federal prohibition on mere possession).

Thursday, July 28, 2016

"Sneaky Pete" type holsters

I had a recent email asking what I thought about a "Sneaky Pete" type holster.  These are a variation on what started as "fanny pak" holsters, and later developed into small "messenger bag" belt holsters.
The question was whether I thought having a firearm in one of these was considered "concealed" for CWL carry.  It's a pretty simple question - and a pretty simple  answer:  Yes.

I've been using small belt "messenger bags" for CWL carry for over five years.  They're small, and don't look like a gun would be in there, more like a large cell phone or calculator.  For that reason, they are an easy way to carry that doesn't draw attention.   Much better than a fanny pak since most folks instantly think a fanny pak has a gun in it.   Since the firearm, itself, can't be seen -- it is "concealed" under the law.  It doesn't matter if somebody else knows or guesses there's a firearm in there -- the only legal issue is whether the firearm itself, is visible.  Since it isn't -- it is  "concealed", and lawful for CWL carry.

Hope that helps.

Wednesday, July 27, 2016

The Hidden Agenda in Today's Politics

The Hidden Agenda in Today's Politics
by jon gutmacher

        The NRA had an interesting article in this month’s edition of the American Rifleman on anti-gun legislation in three states, California (uhh!), Maine, and Nevada.  California is trying to pass a law that requires a background check on the purchase of any ammo!   You and I know this has zero to do with anything other than put the screws to lawful gun owners.  But, California remains the most oppressive state in the Union on gun control, and this is just another step in that direction.  Take a look at the recent case out of the federal appeals court in California where they reversed a prior appellate decision, and held that there was no Second Amendment right to a concealed weapons license without a showing of exceptional need.  Of course, just about nobody qualifies for that in California, and since you can’t openly carry in public there – the restrictions mean you can’t carry at all.  But, with funding from major Democratic sources – these measures continue to pass, to the shame of the rest of the country as the Second Amendment is openly emasculated.   Move on to Nevada and Maine.

Nevada and Maine???   These are pro-gun states!  What the hell is happening there?

Well, like I said – the Bloomberg’s of the world are spending millions to forward their agenda of eventually disarming this country, piece-by-piece.  In this instance, they start by sponsoring legislation that any “transfer” of a firearm must go thru a background check first.
In other words, not only purchases from a licensed firearms dealer (as is the law today), but any purchase – even private ones.

Now, you say – “What’s wrong with that?”

And the answer is simple.  First, that means that any transfer to a friend or relative first needs a background check.  Plus, we all know that the law doesn’t stop criminals who don’t care about it. They get their guns thru theft, straw purchase, or black market.  And since most of these criminals are already felons – we also know that the feds don’t enforce federal gun laws against them.  They just leave it to the states to prosecute under state law.  A miserable failure.  Plus, the only way you can do a background check is thru a licensed firearms dealer!  If they don’t want to be involved – you’re screwed.   No way to do a check.  And, on top of that – in order for them to do the check, you must legally transfer the gun to them so they can enter it into their inventory, and into their records.  That’s federal law!   How many dealers (or you) really want to go through that kind of B.S.???

But, that’s not the big issue.  The big issue is the hidden meaning in the word “transfer”.

To “transfer” is as simple as handing your firearm to a friend for a momentary look.  To “transfer” means you let your wife or kid use your firearm while you’re both at the range.  In other words, these anti-gun Democrats are really very sharp, deceptive folks.  They not only want to screw around with your personal rights for no other reason than making it more difficult for you as a lawful gun owner – they want to set up "traps" for the unwary – to criminalize your ordinary day-to-day endeavors.  To make you a felon simply because you never thought (or heard) that momentarily handing a gun to your wife or husband – was now a felony!

So, welcome to the world of 2016!  Where the Democratic Party has made it very clear they are out to destroy your gun rights, and the protections of the Second Amendment.   And be very, very clear – if they can do away with the Second Amendment – they can do it to all the Amendments! Speech.  Self incrimination.  Unlawful Searches.  Etc.

So . . . understand:   We are in a struggle for more than just guns, or gun rights.  We are in a struggle that will ultimately determine what will happen to our Constitution in the future.  If you haven’t contributed to the Trump or (in Florida) Rubio campaigns – you need to.  Whether it’s five bucks or a hundred – every dollar counts.  Every dollar tells Bloomberg to shove it!  And every dollar puts your money where your mouth is.   It is that important, whether you like these candidates, or not. They are the only ones standing up for what you believe in their campaigns, and the only ones who can put a stop to what's happening to our liberties.

copyright 2016 by jon gutmacher -- You may freely print, use, or disseminate this article so long as you include my name as author.

Saturday, July 9, 2016

Philando Castile case, and some advice

Philando Castile shooting and some advice:
by jon gutmacher

On July 6, 2016, Philando Castile, an African American male,  was shot four times during a routine daytime traffic stop by a police officer in a suburb of St. Paul, Minnesota.  According to Diamond Reynolds,  the girlfriend of Mr. Castile, who was in the vehicle -- Mr. Castile had informed the officer he had a firearm and was legally licensed to carry it, and was reaching for his wallet for his driver's license in response to the officer's request.  At that point, some reports indicate the officer told Castile not to move, and Mr. Castile may have moved his hands slightly at which point the officer shot him, resulting in his death.  The story is tragic.  For CWL holders -- it is a very serious reminder that once a police officer knows there is a "gun" involved in almost any encounter -- there may be a strong possibility of an over-reaction or total misunderstanding by the police officer that results in tragedy to the civilian involved -- no matter what their race or nationality.  I have seen several other YouTube video's where an over-reaction was patent.  On the other hand,  police officers must make split second decisions where their lives are on the line -- and increasingly -- they are the targets.

For that reason,  I urge you to use great caution, and  read my earlier article on the Alton Sterling case.  No matter what the actual situation is -- things have gotten out of hand for everyone -- police and citizens.  In any encounter with police officers I have strongly recommended that before you reach for anything -- anywhere -- that you first ask the officer for permission to do so . . .  and wait for their response and OK, before doing so. My book goes into greater detail -- but this very small piece of advice may advert a tragedy -- for all involved.

And just for the record -- I don't know if the facts are as Ms. Reynolds has said, or not.  It may be entirely different.  But, it is critical for everyone -- no matter your race or nationality -- that this case be investigated before jumping to any conclusions.  Many times the reaction of the police in using deadly force -- was -- the right and proper action.  If somebody is reaching for a gun, or it really looks like it -- there's normally not much of a choice.  But again, only time will tell.  For now,  I'll wait, and repeat my warning:   DON'T REACH -- ASK FIRST!