A reality check on attorneys

I've been getting a ton of emails from people who've joined ACLDN or USCCA who want to know if they can use my name as "their attorney" in case a self defense issue arises. The organizations encourage members to do this, and urge members to get the attorneys "emergency" phone number. Let me set you straight.

Attorneys do not have "emergency" phone numbers where you can contact them at two in the morning, weekends, or whatever. They have "answering services" -- just like everyone else. Unless you're right out of law school -- and really desperate for clients -- we have regular office hours during weekdays, only. Sometimes we do after hours, or weekends on really important stuff where it's worth our while . . . sometimes -- but rarely. Since most self defense incidents will not happen during "office hours" -- your chances of speaking to an attorney when the "sh_t-hits-the-fan" will be almost non-existent unless he or she is your next door neighbor, best friend, or a very close relative. I, and most attorneys, are none of those. That's one of the reasons I wrote my book. If you are a firearms owner, and haven't read it -- you're nuts. If you're also a member of ACLDN or USCCA -- and haven't read it -- you're more nuts.

However, back to reality.

The best you're probably gonna do is be able to make an appointment with the attorney a couple of days after it's all gone down. Hopefully, you're out of jail -- because again -- I am not visiting the jail, and tying up four to six hours of my time visiting you -- unless someone has paid me in advance for doing that. Make bail quick! Worry about the attorney after you get out, and try to see him or her as soon as possible. That's the smartest way to handle it -- and quite frankly -- the best.

I tell people to email me -- because I read emails morning, daytime, and evenings -- including weekends. On the other hand, calling my office number is probably only gonna get you my receptionist. Email -- I see all the time -- and can respond to by email or phone -- whichever is more appropriate -- in my opinion. As to a private number -- NO WAY! I have a life! I don't want your phone call at two in the morning. Sorry -- it's just a fact of life.

Hopefully, you understand where I'm coming from -- and also understand this is also going to apply to almost all other attorneys. If you have my book -- Chapter Eleven fully details what you need to know in dealing with the police, and the possibilities of arrest. I know you'd want to speak to me -- but the cops probably aren't gonna let that happen, anyway. You need to have a plan before it happens -- and need to know that an attorney is purely after-the-fact. Not by minutes or hours -- but probably days, or maybe even a week. Sorry -- just the way it is.

Act of Valor -- a lesson from the War Chief, Tecumseh

I'll take exception to my usual type post -- and share something I thought was truly inspiring.  At the end of the  movie,  "Act of Valor" there is a poem written by the Native American Shawnee War Chief, Tecumseh.  Being a poet, myself,  and as a firm believer in the responsibility each individual has, to take action when necessary -- and not shirk one's duty,  I think it is a noble statement of personal philosophy --  that over the centuries has not lost its truth or deep insight as to how life should be lived:

“So live your life that the fear of death can never enter your heart. Trouble no one about their religion; respect others in their view, and demand that they respect yours. Love your life, perfect your life, beautify all things in your life. Seek to make your life long and its purpose in the service of your people. Prepare a noble death song for the day when you go over the great divide.

Always give a word or a sign of salute when meeting or passing a friend, even a stranger, when in a lonely place. Show respect to all people and grovel to none.

When you arise in the morning give thanks for the food and for the joy of living. If you see no reason for giving thanks, the fault lies only in yourself.

Abuse no one and no thing, for abuse turns the wise ones to fools
and robs the spirit of its vision. When it comes your time to die, be not like those whose hearts are filled with the fear of death, so that when their time comes they weep and pray for a little more time to live their lives over again in a different way. Sing your death song and die like a hero going home.”

Really bad firearm laws the Legislature is trying to pass!

Well  . . .  in my last post I warned everyone about House Bill 463.   But . . .  here are some other real problems:

HB 127 and SB 194.  These bills would make it a felony if you touched or assaulted a utility worker trespassing on your property who was trying to enter against your instructions or refused to leave.  It's totally unnecessary -- and is a disgrace!   Tell your representatives quick to vote against it!  Somehow sponsored by two Republicans out of Jacksonville - Rep. Mike Weinstein  and Senator Mike Wise.   Are these guys sure they're Republicans?

HB 1269 -- allows local governments to pass ordinances making it a crime to carry a firearm or weapon with a CWP into any event on government property or sponsored by government -- such as art and music festivals.  A total unnecessary expansion of local government power, and weakening of the preemption law!  This is still in Committee.  Contact your representatives now!

HB 1147 & HB 1221  -- exempts Broward County from parts of the preemption law.  Swell!  Why don't they just start their own country?   If passed -- expect every other county to follow suit. Make sure you vote against Evan Jenne in the next election.  He's the sponsor of these two horror shows.

HB 4015  & SB 248 -- these bills would repeal a law passed last session that stopped anti-gun doctors from asking questions about if you owned guns.  Why the hell they have any business asking is your guess -- but some of em are still pissed they can't meddle into your personal affairs.  If that's your doc -- change quick!   However,  our thanks (not) to Representative Rick Kriseman of St. Pete and Senator Oscar Braynon for truly -- one of the most anti-gun bills of the session!

More to come!   Sorry -- but some of your legislators suck -- and a lot more aren't reading these bills!  They need your input!  (but use nicer words than me!)

WARNING -- call your Florida senators immediately!!! HB463 SB 998

WARNING  -- ACTION BY FLORIDA CITIZENS NEEDED!

Florida House Bill 463 was just passed by the Florida House of Representatives on 2/23/12.  A better, counterpart bill is before the Florida Senate in SB 998.  While most parts of both bills are positive -- a section of the House bill -- at the very end -- substantially modifies current section 790.15 of the statutes, and presents a HIDDEN DANGER to Florida residents!   Here's the problem:

F.S. 790.15 currently prohibits the intentional discharge of a firearm in public including any on or over any highway, or street -- or shooting over any occupied premises. Exceptions are lawful  defense situations, and lawful hunting on lands designated for hunting by the FWCCD.  Violation is a first degree misdemeanor.

The amendment to this section in HB 463 adds another way to violate the law -- by recklessly or negligently discharging a firearm outdoors on any property used primarily as a dwelling or zoned exclusively for residential use.  Sounds OK until you analyze it.   Here's the problem:

If you shoot on rural or semi-rural property where there's a dwelling -- and anybody doesn't like the way you're shooting -- passage of this bill would likely allow your arrest -- and you'd have to fight it out in court afterwards!  That means that if a neighbor doesn't like you, or having you shoot (and there are lots of those out there) -- they complain to the cops -- and you can get arrested.   I can think of lots of scenarios where this would or could occur.  For instance -- an argument that the berm is too narrow or too low.  That you shot too close to the edge.  That you shot too fast.  Etc.   Quite frankly -- I get emails on this sort of thing happening even now -- when the law is on  your side.  But -- if this bill passes -- all that will change radically! "Negligence" is way too risky of a standard for most criminal laws -- especially as lots of people tend to disagree on what is or is not "negligent" with a firearm.  "Reckless" is fine.  That is a standard where few people disagree - and is reserved for more extreme situations.

Plus -- if arrested -- what happens to your Second Amendment rights???

Many times a bond condition is "no firearms or weapons"!!!   If you're convicted or plea -- you could face a year probation!   In Florida -- anyone on probation may not own or possess firearms!!!  Weapons are also restricted!   A hell of a penalty for a simple mistake -- or -- because a neighbor who didn't like the noise had it in for you.

I doubt anyone in the House really thought this part out.   Unfortunately -- we've had a lot of "pro" Second Amendment bills and laws passed in the last five years that had substantial drafting problems -- mainly because the legal implications were not fully understood by the persons drafting them -- nor the legislators who sponsored and passed them.   This is another "good" law -- that has a very bad section hidden in it.

The good news is that the Senate counterpart  -- Senate Bill 998 -- does NOT include the amendment to 790.15 -- and is therefore perfectly fine to pass as it stands.   I would therefore urge you to make sure your Florida representatives and senators know you favor the Senate bill  (SB 998) because it does not have the dangerous language of HB 463 that amends 790.15, and strongly disapprove of the added provision in HB 463.

jon gutmacher  
jon gutmacher

Waiting period for firearm sales -- my interpretation

On November 28, 2011,  AFT published an "Open Letter to all Federal Firearm Licensees" in Florida concerning the preemption law, and its application to a number of  county ordinances that required a five day waiting period on sales of all firearms.  The ATF letter advised the ordinances were lawful.  However,  I think the letter was "dead wrong"-- and I take serious exception to that interpretation.   Because of that,  I have just drafted a letter to AFT, as follows:
---------------------------------------------------

Arthur Herbert,   Assistant Director
BATFE –  Enforcement Programs and Services
99 New York Avenue,  N.E.
Washington,  D.C.  20226

Re: Open letter to all federal firearm licensees
Dated:  11/28/2011

Dear Mr.  Herbert:

As an attorney specializing in the area of firearm laws and regulations, and a writer in the field,  I have recently had a number of inquiries concerning the above “open letter”, and its correctness under Florida law.  It is my opinion that the “open letter” is incorrect, and should be withdrawn or corrected on the ATF website on the following basis:

Fla.  Const.  Art VIII, section 5(b), allows a county to pass an ordinance requiring a criminal history records check and waiting period between 3-5 days on any “sale” of any firearm within such county – only  where “any part of the transaction is conducted on property to which the public has the right of access.”  (emphasis added).   The history of the provision indicates it was primarily intended to apply to gun shows conducted on public property.

Of course,  the public has a “right of access” only to public property.   Sales of firearms conducted wholly on private property do not grant the public a “right of access” – as such would ordinarily contemplate a trespass unless there was an (actual or implied) invitation or license to enter.  Thus, while a retail store is normally “open to the public”, there is no public “right” of access.  Only a limited invitation to enter as a licensee or invitee – and in conformity to whatever regulations the retailer might require.

While there is no Florida appellate case concerning this issue at this time – it is also my opinion that enforcement of such an ordinance against a retailer would be a violation of Florida’s preemption law,  and subject the county to liability for damages, costs, and attorney fees.  Of course,  the ideal method to determine the issue would be a declaratory action before the Florida courts – but until and unless that happens – the “Open Letter” of November 28, 2011,  should be withdrawn – or at the very least – it should be noted that the issue is unresolved as to whether it applies to sales wholly conducted on private property.

Respectfully,
Jon H. Gutmacher

---------------------------------------------------------------

Now,  you should know (it's on page 14 of the 7th edition) that if I am correct -- the Florida Constitution still requires a three day waiting period on sales of handguns at retail.  And,  likewise -- a county could still enforce a five day waiting period on sales of ANY firearm on public property.  But, sales of rifles and shotguns at retail stores should be off limits to any county ordinance -- and any attempt to enforce such a restriction should be subject to an action for damages, costs, and attorney fees under the new provisions in the preemption law.

So . . .  do I recommend a gun store ignore such a county ordinance?

No!  That would be foolish -- especially as ATF currently has an "Open Letter" that complicates the entire matter.  What needs to be done is for a number of gun stores or trade associations to join together and challenge such an ordinance in court.  That would be the smart way to handle it.  Plus -- if you win, you should get your costs and attorney fees back.

But for now -- the issue is unsettled.   I've got my opinion.  The counties have their opinion.  ATF has its opinion.  And as usual -- the rest of us are screwed until something is actually done about it.

//

Estate sale of firearms and machine guns

I received an email asking what the law was on an estate sale of firearms -- especially if it was thru an auctioneer.  The law is that the estate sells as a private individual -- thus, the administrator of the estate may lawfully sell all weapons without the NICS check, although it is a good idea to do a bill of sale, and make sure you've checked the driver's license, and asked if they are "prohibited" in any way.  Obviously,  don't sell if they are from out of state, or prohibited.  If an auctioneer does the sale -- he or she is also selling "for the estate" unless the firearms were actually sold to him.  An auction of firearms not on behalf of an estate, or not by the actual owner does require an FFL.   As always,   NFA weapons can be held by the administrator only -- and only transferred after the approval is obtained from ATF.  A transfer prior to the approval means you've just committed a felony, and the NFA firearm has just become contraband.  Only the administrator should have possession of the NFA firearm, and it should not be handled by anyone else except in the actual physical presence of the administrator.

Interesting, huh?

Law Enforcement Officers Safety Act -- 15 USC 926B

I was recently emailed a rather insightful question whether the Concealed Weapons Statute [790.06] restricted retired law enforcement officers under the Law Enforcement Officers Safety Act  [15 USC 926B] [ie: hereinafter referred to as the "LEOSA"].  In my opinion, the answer is clearly "no" -- because 790.06 was never meant to apply to that federal exemption.  On the other hand,  the question really raises some issues that are probably not that well understood -- and should be:

First,  the federal law does NOT change any restrictions imposed by FEDERAL law -- only State law!  All federal restrictions that might apply to where you can carry concealed or otherwise -- will still apply!

Second -- the federal law makes it clear that if State law permits private persons and entities (ie: non-government) to restrict who can carry concealed on their property --- the federal law does NOT override that!  Since the trespass laws in Florida have always been that the property owner has the right to enforce any rules they want (as long as not discriminating against age, sex, nationality, religion, race) -- a private property owner who makes it clear they don't want concealed weapons on their property -- has the total right to do so under the federal law.

Third --  My main bitch on the federal law and Florida's preemption law -- the LEOSA applies only to "firearms" -- not any other type of weapons.

Fourth --  The federal law makes it clear that a State law that prohibits or restricts possession of firearms on any type of government property -- still applies to retired and current law enforcement officers.

Fifth -- Make damn sure you're carrying proper i/d as required by the LEOSA -- because that's supposedly a predicate to lawful carry under the federal statute.


So . . . hopefully, that clears up the question.