Friday, March 30, 2012

Damage Control!

While we all watch the day-to-day followings of the George Zimmerman/Trayvon Martin shooting case -- you might begin to wonder about what the hell you would do (or not do) if you were ever involved in a self defense situation -- God forbid,  lest a shooting.   You may also start wondering about "damage control",  and why this case has gone viral.  As I've said from the beginning of this case -- at least in my opinion -- the damage control on the part of Zimmerman has been as close to dismal as anything can get.  The fact that there is some favorable information coming out at this point -- a month later --  may help -- but the damage has already been done.  Everyone involved in the case is probably getting death threats, I'm sure some evidence has been lost, witnesses have "clammed-up" for fear of reprisals  -- and way too many people have already made up their minds what happened -- even though the evidence isn't out there to do that -- and even though everyone is just (quite frankly) totally speculating, and putting their own perspective on something they know just about nothing about.

That being said -- as an attorney who has handled a number of these cases,  and a number of "big press" cases throughout my career -- let me say that rarely -- do you want to play "ostrich" in these cases.  Getting favorable information out is usually essential to fair treatment, and results.   No -- you don't use the "defendant" for this.  You have the attorney do it -- or a sympathetic family member, or friend, or what -- but -- you do it!  You get it out there!

I've spent eight pages in my book outlining what you need to do if these things happen -- and if you're buying the book AFTER you've pointed a gun at someone . . .  or worse . . .  shot them  -- you're gonna be in for a rude shock!   You need to read it BEFORE it happens -- and again immediately after it happens!  Your failure to do so could likely be the difference between legal survival or legal suicide!  Likewise,  if you read Chapter Twelve in the book -- you'd already know exactly how situations like this one come about -- and hopefully, how to avoid them.   The book wasn't written to get you out of trouble -- it was written to prevent you from getting in trouble in the first place!

And,  last but not least -- and I have no idea when Zimmerman got an attorney involved . . .  but you gotta meet with an attorney as soon as possible after something like this happens!   You can't afford to wait!  If you gotta plunk down five hundred bucks just to talk to someone who knows their stuff -- don't be cheap!   This is your life we're talking about!   Just do it!  Every day you waste is another day when you're screwing up your case more and more!

And . . .  just for the hell of it . . .  if you want to be a friend to a fellow gun owner -- tell them to go out and buy my book  . . .  and read it!   It may just save their life, one day.    Have a nice day.

Wednesday, March 28, 2012

The courts still have no idea what the hell is a "common pocketknife"

Confusion  On What the Hell is a "common pocketknife" -- continues:
copyright 2012 by jon gutmacher

What the hell is a common pocketknife?  Ask any ten people -- and get ten different answers.  Ask any of the judges on the Third District Court of Appeal in Miami -- you'll probably get a blank stare.

That's because . . .  they've managed to screw it up, again!

In F.R. v State,  37 Fla Law Weekly D508 (Fla.  3DCA 2012), they decided another common pocketknife case -- somehow got probably a correct result -- and definitely -- for almost all the wrong reasons.  Why?

Well . . .  the case was about a juvenile who brought a pocketknife to school -- with deliberate purpose to use it as a weapon.  That alone,  could take it out of the common pocketknife category -- if provable.  However,  the things that upset the Third District (with two exceptions) -- are things that are absolutely common -- and display a total lack of understanding (as usual) about anything resembling a weapon.  

First -- they mentioned it had a blade just shy of three inches!  Yeah?  So, what?   That's way below the four inch "presumed" length.  Next -- it had serrations along a portion of one side.   Yeah . . . that's for sawing -- not for defense or offense.  Common for cutting seat belts, rope, etc.  Then -- and this is almost unbelievable -- it "locks" in open position!   Damn!  I should hope so!  This has been a common feature for over twenty years so you don't get your fingers cut off!   Of course -- it also had a "curved grip".  Not sure why that's a big deal -- but the Third District thinks so.   They better not visit Lowe's, Home Depot, Sears, Wal-Mart, or any of the other major chains -- if they do -- they're gonna be in for one hell of a shock!  It had a "notched grip".  OK -- score one for the Third District!   First feature that might not be all that common.   Also -- there was testimony it could "seriously injure" a person!   Yeah . . . so can a ball point pen.  So what?    And (oh, goodness!) . . . it had a "long screw" that protruded from the handle which served as a makeshift hilt guard.  Since I have zero idea what the hell they're talking about here -- I'll also give this one to them.  So . . . score "two" for the Third District -- out of a possible seven.   . . .  I'm not sure . . . but when I was back in school (yeah . . . a very long time ago -- me and Ben Franklin) . . . that was considered an "F".

Now . . .  I'm not knocking the end result here -- but,  what I'm really trying to say is this:   Most judges don't have a clue about weapons.  They're probably lucky if they know which end of a steak knife to use at dinner, let alone anything about firearms, knives, or other weapons.  (possible exception here for the Second District Court of Appeal -- which is usually pretty damn smart)  So . . . if you wanna take the chance of carrying a "common pocketknife" around without a CWP -- or worse -- in a probable "prohibited area" -- chances are you're gonna have a rude awakening to how screwed up our judicial system can really be.

So -- just a word to the wise.   Be careful what you carry -- where you carry -- and get the damn CWP!


Saturday, March 24, 2012

The Retreat Rule vs. Stand Your Ground – How They Really Work

The Retreat Rule vs.  Stand Your Ground  –  How They Really Work
copyright 2012 by jon gutmacher

This is an update on two earlier posts I've made -- that further explains the law involved in the Trayvon Martin/George Zimmerman situation.  It is a more involved explanation of the laws that might apply.

The “Stand Your Ground” law – is basically the same law used in Florida for over a century with some added features.  To understand why it is very much needed . . .  what changes might not be a bad thing . . .  and some other important issues . . .  let’s try an actual “intelligent” discussion – without the media hype,   the racial tensions,  and the misinformation from lots of “talking heads” who really have no idea what they’re talking about.

The law prior to the “Stand Your Ground” law basically stated that before you could use deadly force – you had to have a reasonable fear of imminent death or great bodily harm from  a person acting illegally – or a reasonable belief that a forcible felony (the real serious stuff) was taking place or was imminent (in the sense of immediate and unavoidable).  On top of this – your use of deadly force needed to be reasonable.   And – (here comes the retreat rule) – you had to retreat if by retreating – you could avoid the need to use deadly force – and you could retreat with safety.

Of course  – the retreat rule didn’t apply within your own dwelling.   That was called the “castle doctrine” – and is basically the same thing as “Stand Your Ground” – but only within one's home or residence.

How did the 2005 revisions to Florida’s laws change that?

Well . . .  we did away with the “retreat rule” almost completely.   Now – if you are not committing a crime,  and are not in a place you are forbidden to be in – you do not have to retreat if you are faced with a situation where you are being attacked, or if you are attempting to stop the commission of a forcible felony.

What else did the law change?

Well . . .  you are now presumed to have a reasonable fear of imminent death or great bodily harm ONLY if someone is using or has used force to break into your residence, or a vehicle occupied by persons, or is attempting to abduct a person from a residence against that person’s will.  (Situations that have nothing to do with the death of Trayvon Martin, and will have no application to it.)

Not real controversial stuff – except maybe the occupied vehicle scenario as applied to an automobile.

Of course – there’s also the “immunity” granted by the statute.  This is the concept almost totally misunderstood by almost everyone who’s spoken about it on the news, so far.  What the immunity  concept is – under Florida law – is that where the facts of self defense appear evident – the police may not arrest a subject, nor may that person be prosecuted – until the government has sufficient facts that would tend to show that the use of self defense was not lawful.

Sound OK?

Sure!

Why the hell would you arrest or prosecute someone who appears to be innocent of any crime?  (especially as an arrest starts Florida's "speedy trial" rule to run)

How does this work in court?

Well . . . assuming an arrest is made – the defendant has an opportunity to require an evidentiary hearing be held at which time he or she has the burden to prove (by a “preponderance” of the evidence) that they acted in lawful self defense.  That's new under the revised statute.  (Before -- you just went to jury trial.) However, if the defendant can't show that at the motion -- then the case proceeds on to a jury trial,  at a later point.   In such a jury trial – the rules are the same as they’ve been for a hundred years – other than – there is no longer a duty to “retreat” in order to avoid the use of deadly force.

Likewise – if you are convicted – say goodbye to your family, friends, possessions, and any hope of a productive life.  Besides the criminal record that will prevent any decent job once released – Florida has “mandatory minimum” prison sentences for this type of crime where any firearm (including an antique firearm) is unlawfully used or possessed.   Three years for just pointing a gun.   Ten for use of a firearm in any other serious felony.  Twenty if you discharged it.   Twenty-five to life if, as a result of its use,  another person suffers death or great bodily harm.

So . . .  “why”  . . .  you ask – was doing away with the retreat rule a good idea?

Well . . .  think of the various scenarios.   Someone else is attacking you – they have a firearm, or you have a reasonable belief they have one.  Quite frankly,  anyone who knows anything will tell you there’s no safe way of retreating in that situation.  Someone is breaking into your home, boat, whatever – and knows you’re inside.  Same situation – in most such cases – they are armed – and ready to do whatever they need to do to you or your family to accomplish their illegal goals.  If killing you is involved in that – no problem.   What about someone with another type deadly weapon?   What about someone who wants to kidnap your infant,  rape your wife,  rob you,  etc.   Do you really want an anti-gun jury who have no idea of how it “really was” to decide whether you could have retreated safely, or not?  Do you really want them to hash out if you should have retreated rather than stop the armed robbery, or beating of some homeless guy on the side of the road?

Quite frankly – I’ve tried these cases.   This stuff really happens!   And, if you’re in an area where the responding cops or prosecution are “anti-gun”  – you would have gotten prosecuted for this type thing – would have had to spend tens of thousands of dollars for a lawyer,  more on defense of the case, and would have had to either take a plea to something less than a long jail sentence – or faced a jury trial – and prayed that some of the people on the jury understood something about guns and self defense.  Because – quite frankly – with a jury – you never really know what the hell the result will be, no matter what the evidence is.   It’s unfortunate – and yeah – they usually come up with the right result – but not always!  And quite frankly -- by the time it is all done -- you'll have exhausted your funds,  probably lost your job,  spent some time in jail, stressed yourself out beyond belief, lost a lot of your "friends" -- and be really lucky if your family stands by you.

So . . .  how does the law apply to Trayvon Martin and George Zimmerman?

Damn if I know!   Still not enough facts out there!

But,  here’s a little insight:

While George Zimmerman could lawfully follow Trayvon Martin -- even if the police dispatcher told him not to – he had no legal right to stop him,  question him,  or put his hands on him.   While he could lawfully “ask” Trayvon to voluntarily  stop and talk to him – Trayvon had every right to refuse, and keep walking.  Maybe Trayvon thought Zimmerman was a criminal about to rob him?   Did Zimmerman have his firearm out as he followed?  Not real smart as this was not his own property – but “common” property of the apartment/condo complex where  anyone has a right to be as long as they have some type lawful purpose.

If George Zimmerman laid hands on Trayvon Martin to stop him – even if it was just a slight grab.  Such is a “battery” under the law – and now George Zimmerman has just become the illegal “aggressor”,  and in most instances cannot use self defense unless he fully attempts to RETREAT, and makes clear his intention to disengage, and not be involved anymore.   Yes – for some purposes – a “modified”  “retreat rule”  still exists in Florida under Florida Statute 776.041.  That section of the law says a person acting illegally (an “aggressor”) must,  before using self defense, either clearly surrender, or in good faith withdraw from physical contact with the other, and clearly indicate to the other person that he desires to withdraw and terminate any use of force.

Again – is this the situation?   Damn if I know!!!

But, whatever the situation – hopefully you can see that the changes in Florida law were for the best.   FBI criminal homicide statistics show a steady decline in illegal homicides and violent crime in the United States.   And while “justifiable homicides”  have increased in numbers very slightly every year  (238 in 2006;  265 in 2008; 278 in 2010 – and these are total national figures – yeah, the entire nation!).  In fact,   if you look at total population of the United States – they’ve actually decreased in proportion to population growth!  So – they match the national trend!  Seems like those concealed weapons permits actually work, doesn’t it?  (Florida reports that of the 906,924 active concealed weapon permits only .25% (that’s .0025) had to be revoked or suspended because of a disqualifying arrest – without regard to whether the arrest involved a firearm or weapon – or what the ultimate disposition of  the charge was).

So – what really might need fixing if we push it?

Well . . .  if a mandatory twenty years doesn’t discourage the illegal discharge of a firearm – I’m not sure what will.   The only thing I’ve been saying for years is:   as long as a firearm is not discharged – the real problem is not having a “self defense” exception to aggravated assault charges.  This is the most common charge when there is a question in a self defense case where a firearm is not discharged, or used to strike someone.   [Using a firearm to strike someone is an “aggravated battery” due to the use of a “deadly weapon”, and carries a mandatory ten year prison sentence – and by the way – “mandatory” means you serve every single day of the sentence.   No early parole.  No “gain time”.   No nuttin’  – just serve each and every day of it!]  My experience  – time and time again – is that the “bad guy” is often the one who cries “foul”, and blames the honest gun owner for displaying a firearm – in order to cover his or her own illegal actions.   It’s easier to lie – than tell the truth and go to jail – and I see this all too often in disputes between neighbors – and road rage situations.   So . . . in my opinion . . . the changes needed aren’t with the “Stand Your Ground” laws,  immunity, or retreat – it’s with the draconian mandatory sentence  that can be imposed for aggravated assault.   [By the way – a judge does not have the discretion to impose a lesser sentence where a mandatory is called for – it’s “mandatory” in every way!]

If George Zimmerman overreacted – he’ll pay the price.   That’s a lesson that everyone should take to heart!  Having a firearm is a very serious responsibility.   It should be used only as a last clear method of survival – or in the most grievous of situations.  Anything else is just too damn risky!   That’s why I wrote my book – to keep you out of trouble.

Hope this article shed some more light.

Wednesday, March 21, 2012

New 2012 Florida firearm related laws

This is a synopsis of the laws passed in the 2012 legislative session that effect firearm issues.  HB 463 becomes effective when signed by the governor  -- the others on July 1, 2012.

HB 463
First section creates 790.062 which modifies 790.06(2)(b) by allowing any current servicemember, or any U.S. armed forces veteran who was discharged honorably,  to obtain a CWP, even if age is less than 21 years.

Second part  amends 790.15 by making it a first degree misdemeanor to recklessly or negligently discharge a firearm on property used primarily as a dwelling, or zoned exclusively for residential use.
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HB 947
Amends 775.087 to makes it a ten year mandatory sentence for a felon in possession of a firearm if the individual was previously convicted of a dangerous felony or an attempt of  any such listed in 775.084(1)(b)(1), and was in actual possession of a firearm during its commission.  ((if prior was a felony))
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HB 5601
Reduces CWP fees starting July 1, 2012, to $70.00 for issuance, or $60 for renewal.

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the end/

Monday, March 12, 2012

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.