tag:blogger.com,1999:blog-41769864171934269722024-03-13T09:46:37.826-07:00The Orlando Gun LawyerThis blog lists items of interest on Florida and Federal legal issues concerning firearms, weapons, and self defense. If you have a question or a comment - it must be emailed to Floridagunlawyer@aol.com , and must contain a subject line to avoid being spammed. All content on this blog is copyrighted material by Jon H. Gutmacher. Please my fantasy website at www.fantasypoetrybyjongutmacher.com. The above image is"The Last Day" by the fantastic Austrian artist, Alexander Kofler, Jon H. Gutmacherhttp://www.blogger.com/profile/11713457967722761793noreply@blogger.comBlogger94125tag:blogger.com,1999:blog-4176986417193426972.post-74801247546224809842021-06-09T18:31:00.001-07:002021-06-11T16:37:33.863-07:00Updated 9th edition of Florida Firearms Gun Law Book just released in June 2021<p> An updated version of the 9th edition of the Florida Firearms -- Law, Use & Ownership, gun law book was just released in June 2021. The book makes important changes to the 2021 legislative session, modifications to the section on security guards, modifications to the section on US Corps of Engineers controlled land/waterways, and changes throughout the book including an updating of the index. It should be noted that the sections in Chapters Six and Eight on the newly passed HB 259 (security of religious institutions) do not take effect until <b>July 1, 2021</b>, due to inaction by the Governor. Thus, it is still unlawful for a CWL holder to carry concealed on portions of the grounds of religious institutions having daycare or other school activities. This will change on July 1, 2021, to allow such concealed carry. Copies of the new book are available thru my website www.floridafirearmslaw.com, and dealers and gun ranges that carry the book -- although I just started shipping the second week of June, so many dealers may not yet have it in. Check to make sure.</p><p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://1.bp.blogspot.com/-z0D7Zhco2EU/YMFrL7P7AYI/AAAAAAAAC9U/6NWXiRvkmhkKt-4JmnEXSKceRhi6DIV1wCLcBGAsYHQ/s926/BOOK%2BCOVER%2B--%2BJune%2B2021%2B--%2BFULL%2B3%2BPART%2BSPREAD%2B-%2B9th%2Bed.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="648" data-original-width="926" height="448" src="https://1.bp.blogspot.com/-z0D7Zhco2EU/YMFrL7P7AYI/AAAAAAAAC9U/6NWXiRvkmhkKt-4JmnEXSKceRhi6DIV1wCLcBGAsYHQ/w640-h448/BOOK%2BCOVER%2B--%2BJune%2B2021%2B--%2BFULL%2B3%2BPART%2BSPREAD%2B-%2B9th%2Bed.jpg" width="640" /></a></div><br /> <p></p><div><br /></div>Jon H. Gutmacherhttp://www.blogger.com/profile/11713457967722761793noreply@blogger.com0tag:blogger.com,1999:blog-4176986417193426972.post-53597078517827204332020-10-22T07:48:00.003-07:002020-10-22T07:48:54.770-07:00 Self Defense In Florida Does Not Necessarily Stop When the Culprit Flees:<p> Self Defense In Florida Does Not Necessarily Stop When the Culprit Flees:</p><p>copyright 2020 by jon gutmacher</p><p><br /></p><p><span style="white-space: pre;"> </span>There have been some unusual, and very important appellate cases involving Florida self defense issues so far this 2020. The one I’d like to write about now is Bouie v. State, 45 Fla. L.Weekly D415 (Fla. 2DCA 2/26/2020). The facts, developed at a “Stand Your Ground” pre-trial hearing were: Bouie’s brother and pregnant girlfriend were in their vehicle, when another car began following them. The driver was Mr. Favors, an individual who the brother had continuing serious violent conflicts with. A high speed chase eventually allowed the brother to elude Favors, but Favors caught up to the brother at a red light and allegedly got out of his vehicle approaching the brother’s door with what appeared to be a gun. The brother hit the gas, and managed to escape, seeking refuge at his mother’s home. Mr. Bouie, his brother, was at the home, and was told about the harrowing chase. After a short time both left the home in different vehicles. The brother testified Favors was waiting for him in a grass area with his lights off, and came straight at his vehicle. The brother managed another escape, and while being chased spied Bouie’s truck in a shopping center parking lot, and parked behind it. A few seconds later Favors car pulled up, door to door with the brother’s vehicle, got out with a black object in his hand, and began banging on the window of the brother’s car. At that point Bouie got out of his truck with his gun, firing twelve rounds at Favors, including continuing to fire when Favors ran and ducked under his own car for cover. Bouie said he feared for his brother’s life the entire time. Of course, Favors (who was shot six times) managed to survive, and denied everything saying that the brother was the real aggressor. Bouie was charged with attempted second degree murder, aggravated battery, and shooting at an occupied vehicle. The trial judge denied the SYG hearing finding that Bouie initially prevoked the confrontation per F.S. 776.041; and that his continued shooting when Favors tried to flee was unlawful, and occurred at a point AFTER it was reasonable for Bouie to believe there was still an imminent threat. The appellate court reversed. Here’s why:</p><p><br /></p><p><span style="white-space: pre;"> </span>The appellate court said first – that F.S. 776.041 (ie: initial aggressor not entitled to SYG self defense) does not apply to individuals who are defending another person rather than themself due to the statutory wording. In those situations, the only question is whether the defender had a reasonable belief that death or great bodily harm was imminent to the person they are trying to defend, that they are in a place they have a right to be, and they are not engaged in criminal conduct. Here, the appellate court held the State’s case lacked substantial evidence to refute Bouie. Moreover, and probably the most important part of the case for most lawful gun owners: the appellate court held that Bouie’s continued shooting at Favors while Favors was trying to flee did not, by itself, negate the assertion that the continued shooting was reasonable. The appellate court holding: </p><p><br /></p><p><span style="white-space: pre;"> </span>“An armed man can continue to pose a threat of death or great bodily harm even when he is seeking cover behind or inside a car”</p><p><br /></p><p>and that nothing in the record shows that “Mr. Favor ceased to pose that threat after diving in front of his car”. In order to do that – the State would have to submit substantial believable evidence that Bouie did not have a reasonable belief the threat still existed.</p><p><br /></p><p><span style="white-space: pre;"> </span>So, while the Bouie case is full of other really important legal uses for your lawyer, the critical point for me – and why I have written this – is the clear holding that just because a person is fleeing does not, per se, mean they are not a continuing threat – especially if there is a reasonable belief they continue to be armed with a firearm. On the other hand, in my opinion, had it been thought a knife, or other implement – the case might have gone the other way. Hope that helps!</p>Jon H. Gutmacherhttp://www.blogger.com/profile/11713457967722761793noreply@blogger.com0tag:blogger.com,1999:blog-4176986417193426972.post-1642560232631081182020-06-27T08:50:00.000-07:002020-06-27T08:50:38.965-07:00Can you wear a medical mask in Florida and also carry a firearm with your CWL???<b><u>Can you wear a Covid mask & carry a firearm in Florida?</u></b><br />
<b>copyright 2020 by jon gutmacher</b><br />
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<span style="white-space: pre;"> </span>OK, you’ve made the grand mistake of going on social media to try to find out<br />
if you can carry a firearm with your CWL, and also wear a mask to protect yourself, and others from the Covid virus outbreak. You apparently missed my Face Book post on the subject, and are therefore confused as heck because everyone has a different opinion. That’s because most of them don’t know the law, or even the history of the law. So first – let me say – it’s totally legal. Now, let me explain:<br />
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<span style="white-space: pre;"> </span>Back in the 1950's we started school de-segregation in the United States. The KKK was still a big deal, and Florida and many other states started passing statutes making the wearing of hoods, masks, and other regalia often associated with racial animosity unlawful. Thus, Florida created a number of sections in Florida Statute 876 that made wearing any of this stuff in public – illegal. Of course, not everybody who wore a costume, hood, mask, or whatever was a member of the KKK, or was even associated with the KKK. There was Halloween. Masked parties. Masked Balls. All sorts of other totally innocent behavior where wearing a mask or other face covering was the norm, and had no sinister connotations. By 1980 – things had calmed down enough to where a court challenge to the constitutionality of all these statutes was feasible. The answer came to Florida in the case of Robinson v. State, 393 So. 2d 1076 (Fla. 1980), which held that laws such as these were unconstitutionally overbroad, and denied Due Process as they restricted totally innocent, lawful, and usual behavior. Because of that, in the following legislative session in 1981, the Legislature added Florida Statute 876.155, which basically says that unless your wearing of a mask or such in public is for a sinister purpose, or to intimidate others, or to avoid identification if involved in unlawful activity – it is not unlawful. The burden of showing you do not fit these exceptions is likely on the government. <br />
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<span style="white-space: pre;"> </span>So, what does all that mean to you if otherwise lawfully possessing a firearm, with your CWL, or even without one if (for instance) transporting it “securely encased” in your vehicle, and wearing a mask to protect yourself or others from Covid-19, or for any other medical related reason?<br />
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<span style="white-space: pre;"> </span>It means – you are perfectly legal. The case law says it. The statute says it. And, for what it’s worth – I say it, as well. However, one word of caution -- if you are in a public area that has a current local "declared emergency" where firearms are not permitted -- that prohibition controls in public places -- but not private places.<br />
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<br />Jon H. Gutmacherhttp://www.blogger.com/profile/11713457967722761793noreply@blogger.com0tag:blogger.com,1999:blog-4176986417193426972.post-55238932883540467372020-06-04T09:16:00.000-07:002020-06-04T09:16:03.255-07:00A Quick Analysis of the Automatic Provisions of Florida Statute 870.044 -- "no firearms" in a public place<b><u>A Quick Analysis of Florida Statute 870.044 – the “Automatic” prohibitions</u></b>:<br />
copyright 2020 by jon gutmacher<br />
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<span style="white-space: pre;"> </span>You’ve all seen the rioting on television. You’re all worried because you feel the need to have a firearm to protect yourself while driving or out in public, and some jurisdictions have declared “a state of emergency” because of the rioting. What are your options when in these areas, or driving through them???<br />
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<span style="white-space: pre;"> </span>Well, first – let’s look at the one giving everybody the most problems. It’s overbroad, unworkable, and likely unconstitutional as written – but – it is the current law, and violation is a crime and a first degree misdemeanor. Here’s the statute:<br />
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<span style="white-space: pre;"> </span>870.044 Automatic emergency measures.—Whenever the public official declares that a state of emergency exists, pursuant to s. 870.043, the following acts shall be prohibited during the period of said emergency throughout the jurisdiction:<br />
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<span style="white-space: pre;"> </span>(1) The sale of, or offer to sell, with or without consideration, any ammunition or gun or other firearm of any size or description.<span style="white-space: pre;"> </span><br />
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<span style="white-space: pre;"> </span>(2) The intentional display, after the emergency is declared, by or in any store or shop of any ammunition or gun or other firearm of any size or description.<span style="white-space: pre;"> </span><br />
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<span style="white-space: pre;"> </span>(3) The intentional possession in a public place of a firearm by any person, except a duly authorized law enforcement official or person in military service acting in the official performance of her or his duty.<span style="white-space: pre;"> </span><br />
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<span style="white-space: pre;"> </span>Nothing contained in this chapter shall be construed to authorize the seizure, taking, or confiscation of firearms that are lawfully possessed, unless a person is engaged in a criminal act.<br />
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<span style="white-space: pre;"> </span>Obviously, the only problem here is subsection (3) – because it limits you whenever you are “in a public place”. According to its terms – you cannot possess a “firearm” while “in a public place”. Of course, the catch here is that an “antique firearm” and other weapons are not prohibited – so, you can lawfully carry and possess these other weapons under regular Florida laws where already allowed. The other “test case” possibility – and this is purely my take for now, and somewhat tenuous – that assuming you’re driving “on” a public road, street, or highway – you’re not driving “in” a public street. You’re “on” it. So, you would not fall within the statutory prohibition as long as you were also NOT driving “in” any public park, parking garage, public facility, etc. Again – not recommended – but certainly a valid argument if the “test case” ever arises. Likewise, I think the language of the statute is significantly overbroad from a constitutional standpoint. But again – that’s another “test case”, and so I can’t recommend relying on it.<br />
<br />
<span style="white-space: pre;"> </span>Last, the last paragraph of the statute – that was added in 2006 because back in 2005 police and National Guard went door-to-door in private homes in New Orleans after Hurricane Katrina seizing any firearm they could find. That created an uproar across the country – and both the feds and Florida passed statutes that forbade the seizure of firearms unless seized from a person committing a crime.<br />
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<span style="white-space: pre;"> </span>So – now you know about the “automatic” provisions of 870.044.Jon H. Gutmacherhttp://www.blogger.com/profile/11713457967722761793noreply@blogger.com0tag:blogger.com,1999:blog-4176986417193426972.post-4832373910287290622019-12-22T15:54:00.002-08:002019-12-22T15:54:25.172-08:00<br />
<b><u>A Lesson on How Complex the Florida Self Defense Laws Really Are</u></b>.<br />
copyright 2019 by Jon H. Gutmacher, Esq.<br />
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<span style="white-space: pre;"> </span>Too many folks who are not lawyers think reading the statutes gives them an understanding of the law. The problem with that theory is they are not trained in how a statute is legally interpreted, and more so, they do not understand that unless you are also familiar with the case law – a simple reading of a statute may give you a totally incorrect impression of the law. Even for a trained attorney, there are just too many pitfalls – and rarely can an attorney give an instant correct answer on interpretation of a statute he or she has not researched before. A great example of the complexity of the “use of force” statutes is a rather new Florida appellate case, Garcia v. State, 44 Fla.L.Weekly D2859 (Fla. 2DCA 11/27/2019). <br />
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<span style="white-space: pre;"> </span>The decision in this case arise from the denial of a pre-trial motion for immunity under the Florida Statutes. The facts show that Mr. Melchild invited some acquaintances to his home, and once arrived they asked if they could invite some additional friends, one of which was Mr. Garcia. While at the home three of these guests went into a bathroom, locked the door, and began to use drugs. When Melchild found out, he demanded they all leave. Garcia continuously refused saying he needed to wait for his ride. Melchild then physically grabbed him to force him outside, and Garcia physically resisted his efforts. At this point the testimony radically departs with Garcia saying that Melchild and another guest forced him to the ground, were punching and kicking him, and slamming his head into the ground to the extent he was bleeding and dizzy. Because of this he feared for his life or great bodily injury, and gouged Melchild’s eye, causing serious injury. Melchild and the other guest denied hitting or kicking Garcia. The trial judge held Melchild’s testimony credible, and not Garcia’s, and also found that at the time Garcia gouged Melchild’s eye – Garcia was a trespasser, and that Melchild was using lawful force in removing him from the home. Thus, he was not entitled to immunity as he was (1) involved in criminal conduct, and (2) not at a place where he had a right to be.<br />
<br />
<span style="white-space: pre;"> </span>The appellate court reversed finding a number of errors all requiring a new hearing. First, the appellate court said the trial court’s reliance on Melchild lawfully ejecting a trespasser under F.S. 776.031 was not applicable because this event happened inside a dwelling, and in F.S. 776.031 the use of non-deadly force to remove a trespasser only applies to property not a “dwelling”. (776.031 states reasonable non-deadly force can be used to remove a trespasser to property not a dwelling) Secondly, the appellate court noted that while both sections 776.012 and 776.013 have a requirement that a user of deadly force (ie - the eye gouge – ie – “great bodily harm”) be in a place where they have a right to be, and not involved in criminal conduct – these requirements do not defeat self defense or immunity on their own – but only require that the “retreat rule” first be applied to determine if retreat is possible, and if so, whether such would not expose the defender to unreasonable risk of harm. However, since the trial court never considered whether or not Mr. Garcia was able to comply with the retreat rule, the issue had to be relitigated. Likewise, the appellate court held that the trial court failed to determine whether the use of the eye gouge was reasonable in the sense whether Garcia had an objectively reasonable belief that that degree of force was necessary to stop the attack on himself. <br />
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<span style="white-space: pre;"> </span>Not considered by the appellate court was the application of F.S. 776.041 – also known as the “aggressor rule”, which can completely obliterate the right of self defense. And whether the trial court correctly ruled on the use of force to remove a trespasser under the common law. Either of which might have sustained the trial court ruling despite the oversights.<br />
<br />
<span style="white-space: pre;"> </span>So, the case gets returned to the trial court to conduct a new immunity hearing, and Garcia gets a second bite at the legal apple. Chances are the result will be the same, but it strategically helps the defense no matter what the outcome. On the other hand, it should show you how complex these issues really are – and why I generally discourage folks from reading the statutes on their own without also reading my book – so they actually understand how they work in the real world. On that note – the merriest Christmas, Chanukah, and New Year, to you all.<br />
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<a href="https://www.floridafirearmslaw.com/a-lesson-on-how-complex-florida-self-defense-laws-are/">https://www.floridafirearmslaw.com/a-lesson-on-how-complex-florida-self-defense-laws-are/</a>Jon H. Gutmacherhttp://www.blogger.com/profile/11713457967722761793noreply@blogger.com0tag:blogger.com,1999:blog-4176986417193426972.post-13031924006188133932019-10-25T08:55:00.004-07:002019-10-25T08:55:41.187-07:00Florida's first "red flag" (Risk Protection Order) appellate case summarized<b><u>Florida's first "red flag" order (Risk Protection Order) appellate case:</u></b><br />
by Jon H. Gutmacher, Esq.<br />
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<u>Davis v. Gilchrist County Sheriff’s Office</u>, 44 Fla. L. Weekly D2407 (Fla. 1DCA 9/25/2019) is the first reported “red flag” (Risk Protection Order) appellate case in Florida. The case arose when the Sheriff’s Office sought a RPO against one of its own deputies after he became severely unstable, had a physical incident at the department with his girlfriend and another deputy, and then asked a supervisor for help because he wanted to shoot another deputy “in the face”, and told his supervisor exactly how he intended to do it. In response the Sheriff’s Office took him for Baker Act observation, and after evaluation Davis was released as “not being at risk” for further violence. The Sheriff then filed a petition with the court for an RPO, and removal of the deputy’s firearms, and the court issued a temporary order granting such, and set an evidentiary hearing according to the statute, <u>F.S.</u> 790.401. After taking evidence from both sides the judge held that by “clear and convincing evidence” the deputy posed a “significant danger of causing personal injury to himself or others by having a firearm in his custody or control” and issued the one year RPO. Several deputies testified at the hearing that Davis was acting irrational, aberrant, out of character, had experienced a breakdown, and was in need of mandatory mental health intervention. The appellate court noted that there was nothing ambiguous about the evidence. The evidence involved specific threats, a verbalized plan made to others to carry them out, observed loss of self control and erratic behavior, and the means to carry out his threats. In his challenge to the constitutionality of the statute – the appellate court also held that the statute passed constitutional muster as it required a “significant danger”, and was based on the Legislature’s finding that law enforcement needed a tool to counter those situations where an individual is going thru a “mental health crisis” where there is also evidence of a “threat of violence”.<br />
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While the appellate opinion is more robust in the issues involved than this summary, it does serve as a learning tool for future RPO’s. The facts in this case were compelling, and it would be hard to fault the issuance of the RPO here.Jon H. Gutmacherhttp://www.blogger.com/profile/11713457967722761793noreply@blogger.com0tag:blogger.com,1999:blog-4176986417193426972.post-84164207997449352202019-10-01T19:29:00.001-07:002019-10-01T19:29:35.552-07:00September 2019 email questions & answers<div style="background-color: white; border: 0px; box-sizing: border-box; font-family: Roboto, sans-serif; font-size: 16px; margin-bottom: 1.65em; outline: 0px; overflow-wrap: break-word; padding: 0px; vertical-align: baseline;">
<span style="border: 0px; box-sizing: border-box; margin: 0px; outline: 0px; overflow-wrap: break-word; padding: 0px; text-decoration-line: underline; vertical-align: baseline;"><strong style="border: 0px; box-sizing: border-box; margin: 0px; outline: 0px; overflow-wrap: break-word; padding: 0px; vertical-align: baseline;">September 2019 emails:</strong></span></div>
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I’ve decided to include some of the email questions I get during the month into a regular series of monthly posts. These are my opinions based on research:</div>
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Question: Can a 16 year old carry pepper spray (2 oz. “Self defense chemical spray”) to protect herself when walking the dog?</div>
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Answer: Sure. There is no age limit on 2 oz. or under pepper sprays for self defense.</div>
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Question: Are The Florida One Stop Workforce Centers Considered Career Centers Under The Law With Respect To Concealed Carry?</div>
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Answer: No. CWL carry is not prohibited unless they are housed within a school or other prohibited place.</div>
Jon H. Gutmacherhttp://www.blogger.com/profile/11713457967722761793noreply@blogger.com0tag:blogger.com,1999:blog-4176986417193426972.post-51579373666904382002019-09-03T11:34:00.005-07:002019-09-03T11:37:04.005-07:00A free pdf update for the 9th edition thru September 2019 is linked here. The update does not apply to the 2019-2020 printing of the book, as those updates are already incorporated into the print edition.<br />
<a href="https://www.floridafirearmslaw.com/wp-content/uploads/2019/09/Update-Sept-2019-1.pdf">https://www.floridafirearmslaw.com/wp-content/uploads/2019/09/Update-Sept-2019-1.pdf</a><br />
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<br />Jon H. Gutmacherhttp://www.blogger.com/profile/11713457967722761793noreply@blogger.com0tag:blogger.com,1999:blog-4176986417193426972.post-92002421354168950742019-08-08T09:11:00.002-07:002019-08-08T09:11:54.422-07:00Marijuana & gun law in Florida I'll make this very simple -- CBD is not prohibited by federal law any more -- only THC. As long as your CBD product has less than .3% THC in it, you are OK. Read the label. Thus, if you have a medical marijuana card -- you're still legal as long as you're using only CBD. However, use a THC product -- and you've just violated federal law, regardless of what your State says. (at least, for now)<br />
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Simple, huh?Jon H. Gutmacherhttp://www.blogger.com/profile/11713457967722761793noreply@blogger.com1tag:blogger.com,1999:blog-4176986417193426972.post-76252397693894250212019-07-02T20:32:00.001-07:002019-07-02T20:34:53.962-07:00New June 2019 Free book updateJuly 2, 2019: I just added a very clear version of the June 2019 free book update thru the link below. I apologize to those who've tried to download the update from an earlier post. I didn't realize the quality was so bad. You should also know I'm working on an addition to the update that should be out by August 1, 2019. In the meantime, here's the current link to a very clear copy: <a href="https://www.floridafirearmslaw.com/wp-content/uploads/2019/06/Update-June-2019.pdf">New June 2019 Free book update</a>Jon H. Gutmacherhttp://www.blogger.com/profile/11713457967722761793noreply@blogger.com0tag:blogger.com,1999:blog-4176986417193426972.post-87292014573838370102019-01-07T18:16:00.003-08:002019-01-07T18:25:43.519-08:00Shooting out tires of an escaping vehicle in Florida<span style="white-space: pre;"><b><u> Shooting Our the tires of an escaping vehicle in Florida.</u></b></span><br />
copyright 2019 by jon gutmacher<br />
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Well, I got a question from a friend on Facebook referring to the incident summarized below from Marysville, Washington, and then asking whether shooting out tires in such an incident in Florida would be a good idea. Here’s the news story:<br />
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<span style="white-space: pre;"> </span>“MARYSVILLE, Wash. - Authorities say two men were surrounded by customers with guns while attempting to steal tools from a Washington store. The Daily Herald reports the men, ages 22 and 23, allegedly took four nail guns, each worth more than $400, from the Coastal Farm & Ranch store Saturday in Marysville. The men walked out of the store and got into a Honda Civic, only to be surrounded by about six customers with guns raised. Court documents say the driver pulled forward, causing one man confronting him to land on the hood. Documents say another customer shot at the driver’s side front tire, while a third fired twice at the rear tire. Marysville police found the theft suspects’ car unoccupied about three blocks away, with two flat tires and the tools inside. Both men were apprehended after a search.”<br />
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<span style="white-space: pre;"> </span>So, let's analyze the situation: <br />
<br />
This is a very interesting scenario because the total dollar value of the tools makes the crime of theft a “felony”, whereas a theft from a store of merchandise is often just misdemeanor shoplifting. But, even with the value of the tools being a “felony quantity”, in Florida it was not a “forcible felony” because it wasn’t a “robbery”. A robbery requires a taking by use of threat or force. Sure, in most states, what the customers did was totally legal – because their actions were “reasonable”. A few years ago, it probably would have also been legal in Florida. However, a major change in Florida law that added “threats of deadly force” into Florida Statute 776.012, threw out that protection by some really bad legislation due to horrible drafting that changed the entire meaning of the statute. (Hey, I warned everyone including the NRA, the Legislature, and even Florida Carry that it was a bad bill – but nobody really seemed to believe me, or care.) Anyway, in Florida – shooting out tires of an escaping vehicle short of a “forcible felony” would likely be illegal, and a serious crime. <br />
<br />
<span style="white-space: pre;"> </span>Why?<br />
<br />
<span style="white-space: pre;"> </span>Because Florida law only allows the use of a “threat” of deadly force (ie: here - the display of firearms in a threatening way) – in a “forcible felony” situation, even if the display of the firearm was otherwise reasonable, and even prudent (often as a bluff to stop the crime). F.S. 776.012. Of course, it gets worse if you actually discharge the firearm, as that ups it to the “use” of “deadly force” under Florida law – not just a “threat”.<br />
<br />
<span style="white-space: pre;"> </span>Now, I know somebody is gonna say: “Well, when the customers surrounded the car, and the thieves still tried to flee and resist – didn’t that up it to a “robbery” – which is a “forcible felony?”<br />
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<span style="white-space: pre;"> </span>My answer is “no”. Because in order to up it to a robbery – a store employee would have to be added to the equation – not just customers, as F.S. 776.012 is NOT the statute that pertains to the situation – instead – the statute is F.S. 776.031 – (defense of property) – and that requires either an ownership connection of some type or actual “duty” to protect.<br />
<br />
<span style="white-space: pre;"> </span>So, should you shoot out the tires in such a situation? Hell – I wouldn’t. I’m not saying anybody in law enforcement would care if you’re in a gun friendly area of the State, because in the scenario given, I think shooting out the tires was entirely reasonable. But, 776.012 says I’m wrong – since “reasonable” doesn’t matter in Florida as applied to threats short of responding to a forcible felony. Find yourself in one of the the many, many anti-gun cities and counties here in Florida – and not a real smart idea.Jon H. Gutmacherhttp://www.blogger.com/profile/11713457967722761793noreply@blogger.com6tag:blogger.com,1999:blog-4176986417193426972.post-48494302257874317222018-12-19T11:46:00.002-08:002018-12-19T11:46:44.377-08:00New ATF Bump Stock ruleWell . . . we were all waiting for it, and today BATFE announced that bump stocks were (in 90 days) to be treated as "machine guns" because they cause multiple shots by a single pull of the trigger. Of course, that's total political b.s. -- and we all know that for fifty years that wasn't the interpretation. But, the population is changing. The libs got the bucks (far too much). And, bump stocks were seen as a small sacrifice to appease the Evil Liberal Gods. (no offense).<br />
<br />
Of course -- same b.s. here in Florida as of October 1, 2018. Figure . . . one incident with a bump stock in Las Vegas last year -- and suddenly we need to get rid of all of them. Apply that kind of thinking to your AR, Glock, or whatever -- and you should see the need for serious worry.<br />
<br />
Anyway -- Gun Owners of America is backing a lawsuit to undo the ATF ruling -- and if you have five or ten bucks you want to contribute -- if only to shove it down ATF's throat -- it's www.gunowners.org. Great organization. However, for Florida -- we're stuck with our stupid statute thanks to several Republican big wigs who pushed it through the Legislature, including a certain ex-governor (now senator) who I won't mention.<br />
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Just keepin' ya all informed.Jon H. Gutmacherhttp://www.blogger.com/profile/11713457967722761793noreply@blogger.com4tag:blogger.com,1999:blog-4176986417193426972.post-53496176646491651782018-11-04T08:00:00.001-08:002018-12-18T14:25:10.051-08:00Apologies on fewer posts due to health issuesJust wanted folks to know that although I'd love to post more, I've been dealing with some substantial health issues since June, and it has had a definite effect on my work habits. Hopefully, by the beginning of 2019 these issues will have resolved, but in the mean time I haven't spent the usual time on issues. If you have an issue or question - the best way to get my attention is an email from my contact page on my website. I still watch those closely, and try to respond within a couple of days or less. www.floridafirearmslaw.com -- go to the "contact" page.<br />
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thanks<br />
jonJon H. Gutmacherhttp://www.blogger.com/profile/11713457967722761793noreply@blogger.com0tag:blogger.com,1999:blog-4176986417193426972.post-71368979514084808592018-10-21T11:40:00.004-07:002018-10-21T11:40:58.668-07:00Lakeland Commissioner Michael Dunn shoots Christobal Lopez over petty theftANOTHER BAD SHOOT - Lakeland City Commissioner Michael Dunn, October 3, 2018.<br />
copyright by Jon H. Gutmacher, 2018<br />
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<span style="white-space: pre;"> </span>On October 3, 2018, while working at his Army Navy Store, Vets Army Navy Surplus, Michael Dunn, who is also a Lakeland City Commissioner tried to intercept a shoplifter, Christobal Lopez, who was in the process of trying to leave the store with a small hatchet which he had stolen, hidden under his shirt. In trying to stop Lopez, Commissioner Dunn intercepts Lopez just before the front door, grabbing Lopez’s left upper arm while Lopez pushes open the front door with his right hand, continuing to try making his escape. Dunn has a semi-automatic handgun clearly displayed in his right hand all this time. The store is also a federally licensed gun dealership. Lopez continues to pull away from Dunn clearly intent on just making an escape, and largely breaks free and gets through the door, although Dunn still has a grip on Lopez’s shirt. Although Lopez does have the small hatchet in his right hand, it is not held in an offensive manner, and in fact Lopez is holding the hatchet outstretched and away from Dunn’s direction the entire time. Lopez suddenly breaks away from Dunn’s grip for a clear getaway when Dunn shoots him twice in the front and side torso. Lopez dies on the scene. All this is on the store videotape. Is it a good shoot?<br />
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<span style="white-space: pre;"> </span>Well, if you read my book, you already know it wasn’t a good idea, even if it were a good shoot. Rarely, is it lawful to use deadly force to stop a fleeing non-violent crime. There are rare exceptions - but this wasn’t one of them. Let me explain by starting at the beginning, legally.<br />
<br />
<span style="white-space: pre;"> </span>First, you cannot use or even threaten to use deadly force in Florida unless you have an objectively reasonable belief that you are in imminent danger of death or great bodily harm, or where it is both reasonable and necessary to stop or prevent the commission of a forcible felony. In this case, the theft or attempted theft of a small hatchet is at best, a misdemeanor. Deadly force cannot even be threatened. The threat of physical force – the pointing of the gun – is technically a possible “aggravated assault” that Dunn could have been charged with. There may have been defenses to that, but still – using or threatening the use of deadly force to stop a misdemeanor petty theft is a really bad idea.<br />
<br />
<span style="white-space: pre;"> </span>Next – you say “but it was a robbery”. No, it wasn’t. At least, it would be highly arguable that it wasn’t.<br />
<br />
<span style="white-space: pre;"> </span>A robbery is the taking of property by use of force, violence, assault, or putting in fear. F.S. 812.13. While a robbery may occur during flight, in this case there was no attempt by Lopez to use force against Mr. Dunn. Sure, he tried to break away – but that’s all he did. There was no tug of war with the hatchet. There was nothing aggressive about his actions. He just wanted to get out of there. <br />
<br />
<span style="white-space: pre;"> </span>Now, you may say Mr. Dunn was entitled to use the Stand Your Ground law. But, like almost all of these cases, it was not a Stand Your Ground case. There was no attempt by Lopez to attack Mr. Dunn prior to Dunn pointing the firearm. There was no “imminent” anything (other than the theft) until Mr. Dunn decided to intercede, and stop Lopez. Plus, the attempt to stop an individual from stealing property from a business falls under F.S. 776.031. Not even a Stand Your Ground statute. No, to use deadly force in such an instance you are limited only to forcible felonies. Moreover, even if a forcible felony is taking place and it is reasonable and necessary to use deadly force to stop it (not the case here) - you must first “retreat” if you are “engaged in criminal activity”. The pointing of a firearm when not authorized by law will normally be argued as an “aggravated assault”, thus “criminal activity”, and therefore require “retreat” before deadly force can be used – even in cases where deadly force is authorized.<br />
<br />
<span style="white-space: pre;"> </span>So, we’re back to square one. It was a really lousy idea to have the gun out, and pointed to try to stop a petty theft. Sure, there will be defenses. But, they’re not good ones. It will be a very tough case to justify. Just my opinion. And, by the way – it’s all in the book – and while there are a lot of folks who think they don’t need the book – I guarantee that’s probably exactly what Michael Dunn thought, too.<br />
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Jon H. Gutmacherhttp://www.blogger.com/profile/11713457967722761793noreply@blogger.com3tag:blogger.com,1999:blog-4176986417193426972.post-11369556106397903452018-10-10T08:03:00.001-07:002018-10-10T08:03:13.343-07:00CWL carry in a bar in Florida<b><u>CWL carry in a bar in Florida</u></b><br />
by Jon H. Gutmacher, Esq.<br />
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I had an email question today that I thought I long answered in the book, but after some thought decided it might be a good idea to re-explain it in a short blog article:<br />
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At least five or six times a year I get the question “can I carry a firearm at my business location if it is a bar”? My answer is always the same (ie: “yes”), and I usually add the page in the book where the answer is found.<br />
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Why?<br />
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Because there is an exception in F.S. 790.25(3)(n) that states a person may carry (without a CWL) “at his or her home or place of business.” There is no “alcohol restriction” in 790.25.<br />
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I then normally get the usual follow-up question “But, what if I have a CWL – doesn’t 790.06(12)(a)(12) prevent me from doing that because it says the CWL does not authorize carry at “any portion of an establishment licensed to dispense alcoholic beverages for consumption on the premises, which portion of the establishment is primarily devoted to such purpose.”<br />
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Seems pretty clear, right? I can’t use my CWL in this instance???<br />
<br />
And, of course – you are correct. Your CWL does not permit you to carry at a bar or place primarily dispensing alcoholic drinks. But, who cares? F.S. 790.25 has nothing to do with the CWL license in F.S. 790.06, as 790.25 was always meant to apply to non-CWL situations. And of course, that’s where the confusion has arisen.<br />
<br />
Why?<br />
<br />
Because a person with a valid CWL has the option of carry under the laws of either as a CWL, or non-CWL, as they please. <br />
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And why is that, you ask?<br />
<br />
Well . . . the trick is the wording in F.S. 790.06 which states: “(12)(a) A license issued under this section does not authorize any person to openly carry a handgun or carry a concealed weapon or firearm into:”<br />
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In other words – your CWL doesn’t “authorize” you to do certain things – but – if there’s another legal way of doing it – it doesn’t “restrict” it, either! If the Legislature wanted to “restrict” your CWL - it would have used a different word than “authorize”, such as: “allow”, or “permit”. <br />
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So . . . that’s the whole trick in understanding this section of F.S. 790.06. It’s not restricting you – it’s just not allowing you. And, since it’s legal for everyone else in Florida to carry a firearm into their place of employment (although you might get fired for doing that) unless it is a specifically prohibited area under Florida or Federal law – you’re good to go under F.S. 790.25(3)(n).<br />
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Jon H. Gutmacherhttp://www.blogger.com/profile/11713457967722761793noreply@blogger.com0tag:blogger.com,1999:blog-4176986417193426972.post-74635640028729401412018-09-16T09:03:00.000-07:002018-09-16T09:03:57.286-07:00<span style="white-space: pre;"> </span><b><u>Civil liability in Florida for injuring a bystander during lawful Stand Your Ground?</u></b><br />
<b><u><br /></u></b>
<span style="white-space: pre;"> </span>copyright by Jon H. Gutmacher, Esq.<br />
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<span style="white-space: pre;"> </span>In Florida, Stand Your Ground, and other self defense situations have come under intense scrutiny, especially in recent months. However, one aspect of self defense law often overlooked concerns whether there is criminal and civil liability for injury to an innocent bystander. While many gun owners may think they are protected both civilly and criminally – a closer look at the law is needed.<br />
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<span style="white-space: pre;"> </span>First, when an individual is using lawful self defense in Florida, the shooting of a bystander, is not a criminal offense. <u>Nelson v. State</u>, 853 So. 2d 563 (Fla. 4DCA 2003). Likewise, the use of lawful self defense entitles a person to both civil and criminal immunity as pertains to the person against whom force was used or threatened, or those claiming through them. <u>F.S</u>. 776.032(1); and see <u>F.S.</u> 776.085(1). But, a closer examination of the immunity section, 776.032, makes it very clear that the immunity is only against “the person against whom the force was used or threatened” - not bystanders. So, what about civil liability if you unintentionally injure a bystander?<br />
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<span style="white-space: pre;"> </span>Well, in <u>Cleveland v. City of Miami</u>, 263 So. 2d 573 (Fla. 1972), we found that even police could be held liable for negligent shooting of bystander in appropriate circumstances, and the inference seems to be clear that civil liability for injury to an innocent bystander will depend on the general laws of negligence. In other words, it will all depend upon the specific facts of the case - whether there will be civil liability or not. And because of that – and because the damages to a shooting victim and their family may run into the millions – you’d better have a great insurance policy, or think real carefully before you pull that trigger.<br />
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<span style="white-space: pre;"> </span>A bullet has no mind of its own. Once discharged it will travel until it runs into something or someone it cannot fully penetrate, or runs out of kinetic energy and falls to the ground.<br />
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Jon H. Gutmacherhttp://www.blogger.com/profile/11713457967722761793noreply@blogger.com1tag:blogger.com,1999:blog-4176986417193426972.post-35099726994744296172018-09-12T06:39:00.000-07:002018-09-12T06:44:46.156-07:00Frailty & Susceptibility as a defense to the Use of Deadly Force in Self Defense<b><u>Frailty & Susceptibility as a Defense to the Use of Deadly Force:</u></b><br />
by Jon H. Gutmacher, Esq.<br />
<br />
In July of this year (2018) we all can remember the Clearwater convenience store parking lot shooting involving Michael Drejka and Markeis McGlockton. Where McGlockton forcefully pushed Drejka to the ground, and as a result Drejka shot him dead - claiming he was in fear of his life. If you read any of my previous blog posts on the incident - you know I felt the shooting was totally unjustified. Yet, reading Facebook -- so many people disagreed with me saying that it was "reasonable" for Drejka to feel so threatened. However, like I predicted -- Drejka was charged with manslaughter, and now we'll have to wait for the legal machinery for the final outcome.<br />
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But, are there any lessons to be learned from the shooting?<br />
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Why, was I so positive it was a bad shooting?<br />
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Well, as I've said many times in my book, and everywhere else -- the use of deadly force must be "objectively" reasonable -- not just "subjectively" reasonable. By that, I mean that just because you have a real fear of being attacked and as a result dying - or being substantially injured ("great bodily harm") -- the surrounding circumstances must support that belief.<br />
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In the Clearwater case -- this was the problem. Sure -- Drejka subjectively believed he was in mortal danger -- but all the surrounding facts (ie: "objective belief") were contrary to that:<br />
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1. no weapons were involved by McGlockton<br />
2. McGlockton did not pursue his initial attack<br />
3. It appeared that McGlockton had fully disengaged from any further aggression<br />
4. It appeared that McGlockton was retreating<br />
5. There was no warning given by Drejka before shooting McGlockton<br />
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In Florida -- if all that's involved is that you're gonna receive the normal list of injuries that can result from a fist fight without needing serious hospitalization, broken bones, or permanent injury -- deadly force is normally not an option. But, what can change that?<br />
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Well . . . one thing that can change that . . . or at least raise a substantial argument that deadly force is both reasonable and necessary -- happens when the person attacked is particularly susceptible to serious injury. This is called in legal circles "an eggshell" defense. For example: the person had recent surgery of a vital part of the body where re-injury could cause death or great bodily harm; or they have an existing condition or injury where a direct hit from a simple punch or push could cause death or great bodily harm.<br />
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Such a case is <u>Jackson v. State</u>, 43 Fla.L.Weekly D1845 (Fla. 1DCA 8/10/2018). In that case Jackson was convicted of aggravated battery with a firearm. In his defense he claimed that the "victim" had attacked him outside a bar after words were exchanged, and had him against a wall hitting him repeatedly on both sides of his face until he finally withdrew his firearm and shot the man. Jackson further claimed that one of the punches left him with nerve damage to one eye, and that he had recent neck and shoulder surgery where he feared re-injury might break his neck. However, since <i>"in most cases, a person in a fist fight lacks a sufficient justification to use deadly force"</i> -- the trial judge refused to allow an instruction on the use of deadly force as a defense to the shooting. As a result -- Jackson was convicted, with a rather long mandatory prison sentence.<br />
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In reversing the conviction, the appellate court held that the failure to give the requested instruction, and allow the jury to consider whether a person in the defendant's position could have a "reasonable fear of imminent death or great bodily harm" was a mistake as the defendant was a person who arguably had a particularized susceptibility to serious injury. Had he not had those conditions -- then he would have been out of luck, and the conviction would have stood.<br />
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So . . . Jackson gets another trial . . . and if the jury believes him -- he should be found not guilty. But, why did I use this case in the first place -- and why combine it with the Clearwater shooting?<br />
<br />
Well, I did that to illustrate another important point -- that Florida law will likely not support Drejka's claim that he could use deadly force -- as a matter of law. Because there are no facts that make this anything beyond "<i>a person in a fist fight</i>". <br />
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That's my guess on the outcome of the Drejka case. But again -- since that's months away from the writing of this post -- only time will tell.<br />
<br />Jon H. Gutmacherhttp://www.blogger.com/profile/11713457967722761793noreply@blogger.com2tag:blogger.com,1999:blog-4176986417193426972.post-30978260631773838712018-08-29T20:25:00.002-07:002018-08-30T04:47:03.259-07:00Why we need Stand Your Ground - And Why the “Retreat Rule” is Unworkable.<b><u>Why we need Stand Your Ground - And Why the “Retreat Rule” is Unworkable.</u></b><br />
by Jon H. Gutmacher, Esq.<br />
<br />
On August 29, 2018, around 2:20 in the morning, Jason Boek, in a Ford 150 truck pulled up close behind, then beside Uber driver Robert Westlake’s vehicle, and then quickly accelerated past him, cut directly in front, and came to a quick stop forcing Westlake to a stop. Boek then immediately exited his truck, and quickly approached Westlake’s Uber threatening that he has a gun and is going to shoot Westlake. Instead, Westlake who has a Florida CWL, and is also a recent graduate of the police academy shoots Boek once in the chest, killing him. It turns out the “gun” in Boek’s hand was a cell phone, and it is later uncovered that Boek had told individuals at a bar he was going to “f up” the Uber driver who he thought was transporting Boek’s girlfriend home from the bar. In a rather incredibly concise and well thought out press conference, Sheriff Grady Judd, who has jurisdiction of the shooting, laid out why the shooting was perfectly legal, and that Boek got exactly what was coming to him. In a minute by minute summary of the facts, he closed by playing the video of the shooting caught on the Uber driver’s dash camera. <a href="https://www.youtube.com/watch?v=xXAv9BO2VQQ">https://www.youtube.com/watch?v=xXAv9BO2VQQ </a>. The press conference and video are completely instructive WHY the Stand Your Ground law is so important – and why the “retreat rule” is unworkable.<br />
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Of course, in Florida pursuant to the Stand Your Ground law (Florida Statute 776.012), you have a right to use deadly force if you have a reasonable fear of imminent death or great bodily harm to yourself or another, and you are “in a place you have a right to be”, and are not engaged in “criminal activity”. I submit to you, that if an individual you do not know cuts you off, forces you off the road, and then quickly gets out of their vehicle approaching you in an aggressive or menacing fashion – you have an absolute right to assume you are in imminent danger of death or great bodily harm. Add to that the fact that the individual is threatening to shoot you – and you’d better get the first shot off before he does, otherwise you’re probably gonna be the dead, bleeding piece of meat lying in the street. In these cases – the time to make a decision whether to shoot or not to shoot is usually a matter of seconds. In this particular case - it was longer than usual. According to how I timed it – five seconds.<br />
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Now, as practical matter – in almost every case we hear of – whether it is a good shoot or a bad one – there is no practical way to escape or retreat. Things happen far too quickly. Add to that the fact a situation where the assailant appears to be armed with a deadly weapon – especially a firearm – there is NO POSSIBLE WAY to safely escape or retreat without putting yourself at risk of being shot or stabbed, or whatevered . . . while you take a chance of trying to avoid being killed or beaten. That’s why the “retreat rule” is unfair, unworkable, and should not be part of Florida law. Take this case, for example – and let’s remove the video from the equation just for argument’s sake – as not everyone has a dash cam to capture what really happened.<br />
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Had this case gone to trial without a dash cam – the prosecutor would have argued that Westlake could have tried to escape. He could have backed up. He could have fled the scene - in his car. But . . . in reality – could he???<br />
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Of course not. <br />
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If he tried backing up and Boek really had a gun - he still would have made a great target. A bullet can travel over a mile. Yet, without a video – a jury could easily side with the prosecutor. This is the problem with the “retreat rule” – it adds an additional element to a trial that has no business being there. Either the decision to use deadly force is “reasonable and necessary” – or it isn’t. Sure, if Westlake knew Boek was unarmed – or if all Boek had was a knife – Westlake should know the use of deadly force isn’t “necessary”. But, you don’t need a “retreat rule” to figure that out. It’s just common sense. <br />
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So, next time someone tells you that Stand Your Ground is unfair, or racial, or some other b.s. argument – ask them how they would retreat from a bullet. Or someone faster than them. Or a knife, or a club, or whatever. Because – you can’t. Not without continuing to expose yourself to serious danger. In most instances where the threat of your being killed or beaten to a pulp reasonably exists – you either stand your ground – or you die. The retreat rule be damned.Jon H. Gutmacherhttp://www.blogger.com/profile/11713457967722761793noreply@blogger.com1tag:blogger.com,1999:blog-4176986417193426972.post-5299502837039329682018-08-16T15:43:00.001-07:002018-08-16T15:43:58.985-07:00May a gun club member open carry at a gun club meeting?<b><u>May a gun club member open carry at a gun club meeting?</u></b><span style="white-space: pre;"> </span><br />
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I received what is an interesting email regarding what any normal person would think would be legal. The question involved a gun club that meets in their HOA community clubhouse (with permission). The club has no range, but was formed to share the experiences of members, participate in occasional shooting, and share learning about gun matters, such as the selection, safe use, handling, cleaning, and even discussions on the law regarding firearms. The questions were:<br />
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1.<span style="white-space: pre;"> </span>“Can we openly display our firearms during a meeting of our club?” As examples, (a) can we legally bring a firearm to a meeting in the clubhouse of our HOA, put it openly on a table, disassemble it, clean it, and reassemble it, and (b) can we bring firearms from our private collections to our meetings for others to examine?<br />
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MY ANSWER:<br />
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<span style="white-space: pre;"> </span>We start from the premise that “open carry” of firearms is unlawful per F.S. 790.053 unless otherwise excepted by other statutes. You’d think that what you do in private should be your own damn business, and from a constitutional standpoint - I think that assumption would be correct. However, most of the exceptions to open carry are in F.S. 790.25 – and the only subsection that even gets close to the question posed is F.S. 790.25(3)(g), which allows open carry for:<br />
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<span style="white-space: pre;"> </span>“Regularly enrolled members of any organization duly authorized to purchase or receive weapons from the United States or from this state, or regularly enrolled members of clubs organized for target, skeet, or trap shooting, while at or going to or from shooting practice; or regularly enrolled members of clubs organized for modern or antique firearms collecting, while such members are at or going to or from their collectors’ gun shows, conventions, or exhibits;<br />
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<span style="white-space: pre;"> </span>This club doesn't seem to fit any of the above, nor is a "meeting" a "gun show, convention or exhibit”. I realize this makes little sense, and I’ll also guess that with a little bit of thinking the club could legally figure a way around the problem – simply change the purpose to a club “organized for gun collecting”, with a weekly “exhibit” scheduled. There’s nothing in the statute that requires that you can’t discuss or do other things while at the exhibit. However, I’d make sure all of this was put into writing – and of course – only club “regularly enrolled members” qualify, so you also want a written list of those members.<br />
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<span style="white-space: pre;"> </span>Of course, the real answer is to change the law so that: “Open carry of firearms and other weapons is lawful on private or public premises where a person with legal authority authorizes such, unless possession at such a place is specifically prohibited by Florida or Federal statute.” If you like the idea -- contact Marion Hammer at Unified Sportsmen of Florida - or the NRA-ILA. And, ask them to sponsor it.<br />
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<br />Jon H. Gutmacherhttp://www.blogger.com/profile/11713457967722761793noreply@blogger.com2tag:blogger.com,1999:blog-4176986417193426972.post-58614652009728299302018-08-07T19:50:00.002-07:002018-08-13T13:03:37.858-07:00Interesting comment on the Clearwater Shooting - and my responseOn Facebook I received an interesting comment on my previous blog article on the Clearwater Shooting, and I took the time for a semi-lengthy reply that I think is worth repeating, and thinking about.<br />
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Comment: Jon, while I appreciate your blog article on this subject, I take exception to your post script (ie: that the shooting might have been an accidental discharge). I am not an attorney (I did stay in a Holiday Inn Express once), but your mentioning that Drejka may have accidentally pulled the trigger seems to infer that such an action may negate prosecution in this case, whereas I believe, that in this instance, it meets the very definition of manslaughter.<br />
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My Response: I didn't infer that, nor did I mean to infer that -- but only raised that as something that might change the outcome. Generally, you are taught to have your finger across the trigger guard, and not on the trigger, unless you are in a situation where you are ready to actually fire the gun. Unfortunately, in these situations, your adrenaline is pumping a mile a minute, and it is possible to accidentally put too much pressure on the trigger. That would be an accidental discharge. The issue then becomes whether it was reasonable to get to that point where the accidental discharge could occur. To me, if the pointing of the firearm is reasonable -- and -- there is also a reasonable anticipation of an imminent deadly attack -- then placing your finger on the trigger is appropriate, and an accidental discharge while truly unfortunate, would normally be only "simple negligence" and not the higher standard in manslaughter of "culpable negligence". Likewise, there will certainly be instances where displaying or even pointing a firearm is reasonable, but placing your finger on the trigger is not. All of these are valid legal and factual arguments. Whether any would be successful or not -- is another question, and would depend on the particular facts of each case, the skill of the attorneys, and if it went that far -- certainly, the jury selected.<br />
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However, to be clear, and as an update -- the State Attorney has since filed charges in the case for manslaughter against Drejka. Jon H. Gutmacherhttp://www.blogger.com/profile/11713457967722761793noreply@blogger.com0tag:blogger.com,1999:blog-4176986417193426972.post-1968706269460248192018-08-06T08:49:00.001-07:002018-08-13T13:02:18.190-07:00The Clearwater Convenience Store Tragedy – and Stand Your Ground<span style="white-space: pre;"> </span>The Clearwater Convenience Store Tragedy – and Stand Your Ground<br />
<span style="white-space: pre;"> </span>by Jon H. Gutmacher, Esq. – author of the book, Florida Firearms.<br />
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<span style="white-space: pre;"> </span>On July 20, 2018, in the parking lot of a convenience store in Clearwater, Florida, Michael Drejka, a white man, confronted, and verbally berated an African American woman who’s vehicle was unlawfully parked in a handicap parking space. The woman’s boyfriend, Markeis McGlockton, there with the couple’s children, heard about the dispute, and exited the convenience store, suddenly shoving Drejka to the ground with great force. A video camera recorded it all. Drejka’s fall did not seem to injure him, however, he withdrew a handgun, and pointed it at McGlockton who already seemed to be backing away. When the firearm came out, Markeis McGlockton, appeared to turn to walk away, and was shot. He later died from his wounds. Police responded, and did not arrest Drejka, on the grounds that his actions were arguably based on Florida’s “Stand Your Ground” laws. It is unclear whether the police had access to the store video that clearly captured the entire event. Under any circumstances, the case was sent to the State Attorney for review. Because there was no arrest – media became heavily involved in coverage of the case, and as always, there was the usual attack on the “Stand Your Ground” law as being racially biased. This article is an answer to some of the legal issues involved. However, and as an update, the State Attorney has just charged Drejka with manslaughter, which is pretty much what I predicted from the outset. (8/13/2018)<br />
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<span style="white-space: pre;"> </span>Of course, the “Stand Your Ground” law only seems to come under attack when racial issues are fairly, or unfairly tied to it. Unfortunately, criticism is most intense when a prosecution or arrest does not happen immediately. But in actuality, a delay in making an arrest, or in making a decision about whether to prosecute an individual is usually for the benefit of the prosecution, and the alleged victim. It has nothing to do with whether the person who allegedly misused self defense is guilty or not, or should – or should not be prosecuted. I’ll get into that later, at the end of this article.<br />
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<span style="white-space: pre;"> </span>But, “Stand Your Ground” it is actually a very complex area, and widely misunderstood. As a general rule – the Stand Your Ground Law – only applies to a defender who uses, or threatens the use of deadly force in the lawful defense of themself or another. It’s been a basic tenet in federal law since 1895, and it’s primary purpose was to negate the common law legal requirement of using “retreat” before a person could use deadly force in resisting or stopping an imminent (ie: “immediate”) attack on themself or another person. In all those other situations, where deadly force was not being used – the law normally has never had a requirement of retreat.<br />
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<span style="white-space: pre;"> </span>Today, the “Stand Your Ground” law in Florida as set forth in Florida Statute 776.012, allows a person who is attacked, or threatened with immediate attack, to face their attacker without retreating – and where it is reasonable to believe that the attack will result in death or “great bodily harm” (ie: serious injury) – to use or threaten the use of deadly force. In today’s society – that normally means that the defender threatens, or uses a deadly weapon such as a firearm, knife, or other implement capable of causing death or serious injury to the other person.<br />
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<span style="white-space: pre;"> </span>That’s the simple explanation. But, as you begin to read through the other statutes and cases that affect Stand Your Ground, you find that there are more subtle requirements involved before self defense can be lawfully used, as follows:<br />
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1. <span style="white-space: pre;"> </span>You, or another individual, must be unlawfully attacked, or about to be unlawfully attacked in an immediate (“imminent”) sense.<br />
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2. <span style="white-space: pre;"> </span>The response of the defender must be reasonable in relationship to the attack, or perceived attack. You cannot lawfully exceed the degree of force being used against you, unless it is reasonable to believe that you will suffer death or great bodily harm if you do not use deadly force.<br />
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3.<span style="white-space: pre;"> </span>The use of deadly force, or any force – is only lawful when there is a reasonable apprehension of an imminent (immediate) attack.<br />
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4.<span style="white-space: pre;"> </span>If the other person clearly withdraws from the fray, or clearly indicates they want no part of further violence - your right to use self defense disappears at the moment you realize that, or should reasonably realize that. In other words – if the danger to yourself or another reasonably appears to have ended - your right of self defense has also ended.<br />
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5.<span style="white-space: pre;"> </span>The burden of deciding whether a person has lawfully used self defense is on the government. Thus, before an arrest can lawfully be made, the arresting agency should assume that the defender acted legally, unless there is proof that clearly overcomes that assumption. In many cases, that will mean that the decision on whether to arrest or not will be delayed – and passed on to the State Attorney, who will have the law enforcement agencies involved submit a more extensive investigation so that any prosecution will hold up in court. This is especially true in Florida as any arrest triggers what is known as the “speedy trial” rule. Under that rule, if an individual is arrested for a felony, they must be brought to trial within 180 days or the case against them can be dismissed forever. Obviously, an arrest made too early, before the State has fully investigated a self defense case can have a devastating effect on the prosecution. That’s why these cases like this may take weeks to months before a decision to prosecute is made. And in cases such as this – the “rush to justice” by the family of a decedent, and often by outside agitators, only hurts the ability of the State to prosecute, by putting pressure on the State Attorney to prematurely bring a case before all the evidence is ready.<br />
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<span style="white-space: pre;"> </span>However, the really interesting part about this case, unseen by the general public, is the social media response of the firearms community. With rare exception, most of the comments on the case have all come to the same conclusion – that it involved a “bad shoot”. In other words – a shooting that was not justified. Sure, there were plenty of comments that Drejka had the right to pull his firearm – but very few of them went so far as to say his discharge of the firearm was anything but highly unlawful. That’s because the video clearly indicated that there was no follow-up to the original attack by Mr. McGlockton. In fact, it seemed clear that he was backing away immediately after the push, and especially when the firearm came out. That legally means he (1) withdrew from the fray, and (2) was no longer an “imminent” danger to the shooter.<br />
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<span style="white-space: pre;"> </span>So, while there will always be portions of the community who will point the finger at a case as being “racially” motivated – this is not one of them. There is actually a high likelihood that Drejka will eventually be prosecuted. Likely, for manslaughter. And, contrary to the belief in some circles – there will be little complaint when this happens from anyone in the firearms community - as the shooting here is contrary to everything taught in the firearms community. You don’t use deadly force against an attacker who withdraws from an attack, nor do you use deadly force against an unarmed person unless there is a solid reason to believe death or great bodily harm will result unless you do.<br />
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<span style="white-space: pre;"> </span>The “Stand Your Ground” law came about because the “retreat rule” was, and continues to be unworkable. When faced with an immediate attack, especially from an armed individual, there is rarely any actual “reasonable means of retreat”. Thus, the prior law of forcing individuals to try to retreat before they were allowed to try to defend themselves was unfair and unreasonable. The Stand Your Ground law recognized that, and corrected that. It protects us all – and was never meant to be applied in a racially discriminatory manner. Until the public truly understands this, criticism may continue – but the law, as long as exercised fairly – is the best answer we have.<br />
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*** (but as an afterthought due to a reply that there might be other evidence)<br />
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The one thing I didn't cover in my original post was: What if the shots were unintentional? I mean, what if Drejka had his finger on the trigger in anticipation of an attack, and in the heat of the moment didn't realize he put too much pressure on it? It's not all that hard of a mistake to make when your pumping adrenalin a mile a minute - and that would certainly negate any criminal intent. Plus, it could easily account for more than one discharge. All of a sudden -- you have a very different case, and my conclusion in my original post might be 100% wrong. Since I don't know if Drejka claimed that, or had a different explanation (assuming he gave any explanation to the police besides "self defense") -- I'll pass at any further analysis -- other than saying -- maybe this is a very different case than I originally envisioned, although I think it may be really hard to get over that video.<br />
<br />Jon H. Gutmacherhttp://www.blogger.com/profile/11713457967722761793noreply@blogger.com23tag:blogger.com,1999:blog-4176986417193426972.post-64883771863758159042018-08-05T08:03:00.000-07:002018-08-05T08:05:20.607-07:00It's "mental health" stupid! Not guns!<br />
Media will continually allow the anti-gun left to rant away about guns - but will rarely put the blame where it actually lies for school shootings -- on incompetent government officials and administrators, law enforcement included, who have failed to do their jobs, failed to take the necessary steps, or ignored the obvious. I continue to call the "War on Guns" -- "The Great Diversion". For, it diverts attention from the actual causes of these terrible incidents - diverts attention away from those actually responsible for all the failures -- and diverts attention from a unified approach at solving the actual problem -- mental health -- and dealing with the other aspects of the issue. But, here's just another new article showing that long before the Parkland shootings happened -- the shooter had asked for help, and received none. When you're reading the article -- see if you can find any names on who the article says we should hold responsible for the failure. Bet you don't find any! Think about it.<br />
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<a data-saferedirecturl="https://www.google.com/url?hl=en&q=https://www.theblaze.com/news/2018/08/04/bombshell-report-parkland-killer-asked-for-help-months-before-massacre-but-officials-ignored-him&source=gmail&ust=1533564783242000&usg=AFQjCNFFTu-rs_xhCxhvxXloYBqr7Af4Cw" href="https://www.theblaze.com/news/2018/08/04/bombshell-report-parkland-killer-asked-for-help-months-before-massacre-but-officials-ignored-him" style="color: #1155cc;" target="_blank">https://www.theblaze.com/news/<wbr></wbr>2018/08/04/bombshell-report-<wbr></wbr>parkland-killer-asked-for-<wbr></wbr>help-months-before-massacre-<wbr></wbr>but-officials-ignored-him</a></div>
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Bombshell report: Parkland killer asked for help months before massacre, but officials ignored him</h1>
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<span class="m_8328332512263941027byline" style="display: inline !important; font-size: 1em !important; margin: 0px; max-width: 100%;">Chris Enloe</span><span class="m_8328332512263941027delimiter" style="display: inline !important; font-size: 1em !important; margin: 0.07em 0.45em 0px; max-width: 100%; padding: 0px;"></span><time class="m_8328332512263941027date" datetime="2018-08-04T16:59:16-04:00" style="display: inline !important; font-size: 1em !important; margin: 0px; max-width: 100%;">1 hour</time></div>
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<figure style="color: rgba(0, 0, 0, 0.65); font-family: -apple-system-font; font-size: 0.75em; line-height: 1.5em; margin: 1.4em 0px; max-width: 100%;"><img alt="Bombshell report: Parkland killer asked for help months before massacre, but officials ignored him" class="CToWUd a6T" id="m_8328332512263941027C9FED08E-9036-4119-BCB6-57CB4F92AB82" src="https://mail.google.com/mail/u/0/?ui=2&ik=f755bb7fda&view=fimg&th=1650712180e53eec&attid=0.1.1&disp=emb&attbid=ANGjdJ8QT-SnWGPN6S43lRLnVhJ4PdsE-_7NpAqVu3qdnaOmNFIMWE0Vvv-_qMiqylx5xdIBlXg-XoRJuVORBSETa-GVSflZP1BwRoaGq8AoKOVpgaRdPloQ4gdkW48&sz=s0-l75-ft&ats=1533478383241&rm=1650712180e53eec&zw&atsh=1" style="cursor: pointer; display: block; margin: 0.5em auto; max-width: 100%; outline: 0px;" tabindex="0" /></figure><br />
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A <a data-saferedirecturl="https://www.google.com/url?hl=en&q=https://www.trbas.com/media/media/acrobat/2018-08/99947415-04054436.pdf&source=gmail&ust=1533564783242000&usg=AFQjCNGJjjsAsZ_A-M9IzKuKYMp3XiKJUA" href="https://www.trbas.com/media/media/acrobat/2018-08/99947415-04054436.pdf" rel="noopener" style="color: #416ed2; max-width: 100%;" target="_blank">new report detailing the <span class="aBn" data-term="goog_237205854" style="border: none !important; cursor: inherit !important; position: static !important; top: -2px; z-index: auto !important;"><span class="aQJ" style="border: none !important; cursor: inherit !important; position: static !important; top: 2px; z-index: auto !important;">Feb. 14</span></span> shooting massacre</a> at Marjory Stoneman Douglas High School reveals the 19-year-old killer asked officials for help months prior to the attack — but the school district denied him the assistance he requested.</div>
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The report comes nearly 6 months after the killer murdered 14 children and three teachers. For months, questions about the school district’s culpability in the tragedy have gone unanswered.</div>
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What are the details?</h3>
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The <a data-saferedirecturl="https://www.google.com/url?hl=en&q=http://www.sun-sentinel.com/local/broward/parkland/florida-school-shooting/fl-florida-school-shooting-consultant-report-full-20180803-story.html&source=gmail&ust=1533564783242000&usg=AFQjCNHh_W2VuuarO9EyPkgrBcc3ZMHGsQ" href="http://www.sun-sentinel.com/local/broward/parkland/florida-school-shooting/fl-florida-school-shooting-consultant-report-full-20180803-story.html" rel="noopener" style="color: #416ed2; max-width: 100%;" target="_blank">Sun-Sentinel reported</a>:</div>
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In the year leading up to the mass shooting at Marjory Stoneman Douglas High School, [the killer] was stripped of the therapeutic services disabled students need, leaving him to navigate his schooling as a regular student despite mounds of evidence that he wasn’t.</div>
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The school district’s failure to properly handle the killer’s behavioral issues were revealed in report commissioned by the Broward public school system. Broward Circuit Judge Elizabeth Scherer <span class="aBn" data-term="goog_237205855" style="border-bottom: 1px dashed rgb(204, 204, 204); position: relative; top: -2px; z-index: 0;" tabindex="0"><span class="aQJ" style="position: relative; top: 2px; z-index: -1;">on Friday</span></span> ordered the report be released, but with heavy redactions.</div>
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However, the Sun-Sentinel managed to obtain the full, unredacted report.</div>
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The report, authored by the Collaborative Educational Network of Tallahassee, concluded the Broward school district made two glaring missteps when handling the killer’s behavioral issues, ultimately failing to comply with laws on the treatment of students with disabilities.</div>
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According to the Sun-Sentinel, those two instances were:</div>
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<li style="margin-left: 15px; max-width: 100%;">District officials “misstated” the killer’s educational options during his junior year when faced with the possibility of being removed from MSD, leading him to refuse special educational opportunities afforded to troubled students.</li>
<li style="margin-left: 15px; max-width: 100%;">When the killer asked school officials to return to the “therapeutic environment” of Cross Creek School, a school for troubled students, Broward officials “did not follow through.”</li>
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Because of the district’s missteps, the killer “had no school counseling or other special education services in the 14 months leading up” to the Valentine’s Day tragedy, the Sun-Sentinel reported. That means he was treated as a regular student, despite his need for special care.</div>
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After the district failed to “follow through,” the killer dropped out in February 2017 and purchased the AR-15 rifle he later used in this year’s tragedy, the Daily Beast <a data-saferedirecturl="https://www.google.com/url?hl=en&q=https://www.thedailybeast.com/parkland-shooter-asked-for-help-but-was-denied-before-shooting&source=gmail&ust=1533564783243000&usg=AFQjCNEOJtGp9ZbSrx0j5REw3uX4R8zVGQ" href="https://www.thedailybeast.com/parkland-shooter-asked-for-help-but-was-denied-before-shooting" rel="noopener" style="color: #416ed2; max-width: 100%;" target="_blank">reported</a>.</div>
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Does the report align with district officials’ claims?</h3>
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According to the Sun-Sentinel:</div>
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In the past, [Broward Schools Superintendent Robert] Runcie said that when Cruz turned 18 and rejected special education placement, the district could no longer provide him with the services given to students with emotional and behavioral disabilities. But the consultant’s report reveals for the first time that Cruz himself requested to return to special education, and his request went nowhere.</div>
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How did the killer’s legal team respond?</h3>
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Gordon Weekes, the spokesman for the killer’s public defender legal team, told the Sun-Sentinel the report is an attempt by the district to “whitewash” their mistakes.</div>
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“I think that the report is an attempt by the school board to absolve itself of any liability or responsibility for all the missed opportunities that they had in this matter,” he said.</div>
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Jon H. Gutmacherhttp://www.blogger.com/profile/11713457967722761793noreply@blogger.com1tag:blogger.com,1999:blog-4176986417193426972.post-21254065788096181022018-05-26T16:35:00.003-07:002018-05-26T16:37:58.744-07:00New updated 9th edition book just releasedThe June 2018 printing of the 9th edition, Florida Firearms -- Law, Use & Ownership book has just been released to vendors, and should be on sale at selected sites this weekend. The book has been completely updated on the 2018 Florida legislative session (where we all got screwed); been updated in all other areas for clarity; certain sections were revised; new sections were added; and the index was expanded. However, the section on Georgia and Alabama laws was omitted due to practical considerations.<br />
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All prior editions are now considered totally superceded, and should be discarded -- including 8th edition books. Only the 9th edition is current -- even with updates. Updates for all prior printings of the 9th edition are available here on my blog, and on the website for free download.<br />
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The newest printing of the book has a blue circle on the lower left of the cover with the words: UPDATED 2018-2019.<br />
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<br />Jon H. Gutmacherhttp://www.blogger.com/profile/11713457967722761793noreply@blogger.com3tag:blogger.com,1999:blog-4176986417193426972.post-23154578535792428722018-04-15T21:50:00.000-07:002018-04-16T04:51:37.742-07:00Explaining Florida's Confusing F.S. 790.25<b><span style="color: blue;">The following post is a legal article that explains the history and current meaning of F.S. 790.25. It is more for lawyers and judges than lay readers, but if you have an interest please feel free to take a look. However, it is copyrighted by me, and took over two months and sixty hours of research to complete. Therefore, I would ask that you do not distribute or copy it without my specific authorization, and if you use any part of it, that due credit be given to me as the author and researcher. </span></b><br />
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<b><u>ONE OF FLORIDA’S MOST CONFUSING STATUTES: 790.25</u></b><br />
copyright 2018 by Jon H. Gutmacher, Esq.<br />
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<span style="white-space: pre;"> </span>One of the most confusing sections of Chapter 790 is 790.25(5) and its relationship to 790.25(3)(l). The only way to really understand these two sections is to undertake a historic analysis. To do that, I started with the year 1941.<br />
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EARLY STATUTES:<br />
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<span style="white-space: pre;"> </span>In 1941 there was no <u>F.S.</u> 790.25, and there wasn’t a concern about open carry – at least as to most long guns. In those days “open carry” was the rule of law, and concealed carry of all other weapons (other than a common pocketknife), including firearms, was a crime. <u>F.S</u>. 790.01 was the section that covered it, and this section stated:<br />
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<span style="white-space: pre;"> </span><i>“Whoever shall secretly carry arms of any kind on or about his person . . . shall be punished . . . .”</i><br />
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<span style="white-space: pre;"> </span>Open carry of most firearms and other weapons was the general rule and was largely unregulated, although there was an exception for pistols and repeating rifles. In fact, in order to even carry a pistol or repeating rifle, just openly, you needed a separate license from each and every respective county you wanted to carry them in. <u>F.S</u>. 790.05:<br />
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<span style="white-space: pre;"> </span>“<i>Whoever shall carry around with him, or have in his manual possession . . . any pistol, Winchester rifle or other repeating rifle, without having a license . . . shall . . . be punished . . . .”</i> <u>F.S</u>. 790.05<br />
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<span style="white-space: pre;"> </span>This license was obtained from the county commission, and covered only pistols and Winchester or other repeating rifles. <u>F.S</u>. 790.06. Nothing in this statutory scheme changed until 1965.<br />
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THE 1965 CHANGES:<br />
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<span style="white-space: pre;"> </span>In 1965 the Legislature added <u>F.S</u>. 790.25. Subsection (2) of that statute, titled “Lawful Uses”, stated that:<br />
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<span style="white-space: pre;"> </span>“<i>This section shall not authorize carrying a concealed weapon without a permit, as prohibited by s.790.01-s.790.04.”</i><br />
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<span style="white-space: pre;"> </span>However, the phrasing was extremely misleading as there was no legal or statutory means to carry concealed in any of those sections, or anywhere else in Florida law. Open carry was still strictly followed in Florida. In fact, as discussed earlier, <u> F.S</u>. 790.01 prohibited all concealed carry, and that applied to all “arms of any kind”. So, the actual meaning of the language was that concealed carry was still prohibited.<br />
<br />
<span style="white-space: pre;"> </span>Once you understand that, you understand the purpose of Subsection (3). Subsection (3) was only designed to allow the carry of pistols and repeating rifles without a firearm permit in the “<b>Exceptions</b>” , thus the phrasing:<br />
<br />
<span style="white-space: pre;"> </span>“<i>Exceptions – The provisions of s. 790.05 and 790.06 shall not apply in the following instances, and despite said sections it shall be lawful for the following persons to possess and lawfully use firearms and other weapons, ammunition, and supplies for lawful purposes.</i>”<br />
<br />
<span style="white-space: pre;"> </span>So, it’s clear that the real purpose of this section was to allow pistols and repeating rifles to be carried without a permit – openly – just like a shotgun or non-repeating rifle in the “exception” outlined situations. Thus, there was no intention to have the “exceptions” applying to other firearms and weapons. Just “pistols” and “repeating rifles”. <u>See</u>, <u>State v. Bryant</u>, 373 So. 2d 708 (Fla. 3DCA 1979).<br />
<br />
<span style="white-space: pre;"> </span>Why?<br />
<br />
<span style="white-space: pre;"> </span>Because you could already legally carry and transport all of these other weapons and firearms openly, without reference to the exceptions. <u>See</u>, <u>State v. Day</u>, 301 So. 2d 469 (Fla. 1DCA 1974).<br />
<br />
<br />
<span style="white-space: pre;"> </span>In 1968, everything began to change with the assassination of Martin Luther King, and Bobby Kennedy. Federal gun restrictions were really created in that year, and Florida made changes in 1969 that significantly changed the wording in <u>F.S</u>. 790.01 from making it a crime to carry all “arms” concealed, to making it a misdemeanor to carry “on or about” a person a concealed weapon, or making it a felony for carrying “on or about” a concealed firearm – and then adding a subsection (4) that exempted persons having a handgun/repeating rifle license (per 790.05) from any of the prohibitions in concealed carry. Thus, for the first time, holders of a pistol/repeating rifle license were allowed to conceal carry. However, the prohibition on carrying a pistol or repeating rifle without a firearm license still existed per <u>F.S</u>. 790.05 & <u>F.S</u>. 790.06. Moreover, when you understand the statutory history of these sections, you understand that <u>F.S.</u> 790.25(3)(l), which required “the weapon” to be “securely encased” while traveling in a private conveyance – was meant to cover only handguns and repeating rifles. That’s exactly what Subsection (2) stated in very clear language:<br />
<i><br /></i>
<i>“The provisions of s. 790.05 and 790.06 shall not apply in the following instances . . . .”</i><br />
<br />
<span style="white-space: pre;"> </span>The case law was conflicting, but began to interpret <u>F.S</u>.790.25 literally beginning with <u>Peoples v. State</u>, 287 So.2d 63 (Fla. 1973), where the Florida Supreme Court held that a pistol kept under a shirt on home or business premises fell directly under <u>F.S</u>. 790.25(3)(n), and was a defense to both open and concealed carry. <u>Accord</u>, <u>French v. State</u>, 279 So. 2d 317 (Fla. 4DCA 1973)(pistol in pocket at residence): <u>State v. Hanigan</u>, 312 So. 2d 785 (Fla. 2DCA 1975)(strapped revolver under front seat).<br />
<br />
<span style="white-space: pre;"> </span>In 1977 the Legislature amended <u>F.S</u>. 790.06 to allow the County Commissioners to issue a “license to carry concealed pistols on the person”. A separate license was needed for each firearm so licensed. <u> F.S</u>. 790.05 was unchanged – and likewise s. 790.25 remained unchanged.<br />
However, the confusing drafting of these sections, and conflicting case law was causing serious problems in the community. People were getting arrested for carrying concealed pistols in their vehicles when they were under the impression that carrying such firearms was legal. The failure of the Legislature to define “<i>securely encased</i>” led to some courts to holding that only a “locked” container was actually “securely” encased – while other courts held that a “two step” process of retrieval was sufficient.<br />
<br />
<span style="white-space: pre;"> </span>In <b>1982</b> the Legislature finally had enough of the controversy, and added definitions to <u>F.S</u>. 790.001 for “<i>securely encased</i>”, and “<i>readily accessible</i>”, largely settling the legal controversy. “<i>Securely encased</i>” no longer meant “encased securely”. It simply meant that the method of encasement met the statutory definition. Likewise, the Legislature added Subsection (5) to s. 790.25 related to “<b>Possession in Private Conveyance</b>”:<br />
<br />
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<span style="white-space: pre;"> </span>“<i>Notwithstanding subsection (2), it is lawful and not a violation of s.790.01 to possess a concealed firearm or other weapon for self defense . . . ,without a license, if the firearm or other weapon is securely encased . . . . Nothing herein contained prohibits the carrying of a legal firearm other than a handgun anywhere in a private conveyance . . . . Nothing herein contained shall be construed to authorize the carrying of a concealed firearm or other weapon on the person. This subsection shall be liberally construed . . . .”</i><br />
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<span style="white-space: pre;"> </span>In 1983 the Legislature changed the title of subsection (2) to “Uses Not Authorized”, with no appreciable changes in wording, and changed the title of subsection (3) from “Exceptions” to “Lawful Uses”, again without any appreciable wording changes. No other changes were made to the various subsections until 1987. At this point, with <i>“securely encased</i>” finally being statutorily defined, the case law appeared to solidly interpret <u>F.S</u>. 790.25 as permitting both concealed and open carry of all firearms within the exceptions. Thus, in <u>Alexander v. State</u>, 477 So. 2d 557 (Fla. 1985), the court held that a handgun in a man’s zippered purse qualified as a gun case, and therefore met the statutory definition even if other items were stored within the purse. <u>City of Miami v. Swift</u>, 481 So. 2d 26 (Fla. 3DCA 1985), affirmed a $50,000.00 civil verdict for false arrest where a fully loaded pistol was contained in a closed, but unlocked, center console – the court holding this fell squarely within the statutory definition of a closed container. <u>See</u> <u>also</u>, <u>Dixon v. State,</u> 831 So. 2d 775 (Fla. 4DCA 2002), holding that a fully loaded pistol in a closed but unlocked console was an exception under s. 790.25(3)(l), and that earlier cases in conflict were decided prior to the statutory changes.<br />
<br />
<span style="white-space: pre;"> </span>In 1987 sweeping, and substantial changes were made in the statutes related to firearms that, for the most part, are still the essence of Florida firearms laws. Preemption was introduced in <u>F.S</u>. 790.33. <u> F.S</u>. 790.05 was completely eliminated. <u>F.S.</u> 790.06 was entirely redone to transfer all authority to issue firearm and weapon licenses to the State rather than various County Commissions, with the license covering all weapons and firearms. And, <u>F.S.</u> 790.053 was introduced which made “open carrying” of firearms unlawful. The reasoning that once applied to pistols and repeating firearms appears to be totally blurred, or entirely wiped out by more modern and liberal interpretation of the section and subsections by the courts.<br />
<br />
CONCLUSION:<br />
<br />
<span style="white-space: pre;"> </span>So, does <u>F.S</u>. 790.25(3)(l), apply to all firearms and weapons or just pistols and repeating rifles?<br />
<br />
<span style="white-space: pre;"> </span>My belief is that since 1982, and certainly since the 1987 revision it is what it says it is, even though that was not the original meaning or intent. Courts are required to give statutory words and phrases their plain meaning. Firearms must be “<i>securely encased</i>” or “<i>not readily accessible</i>” when transported in a private conveyance. That’s especially true because of the addition of <u>F.S</u>. 790.25(5) in 1982. And to be truthful, the courts had blurred that meaning long before 1987. However, both historically and otherwise, the entire section, s. 790.25, has nothing to do with CWL holders. They can still carrying concealed and on their person despite this section and all its subsections. Likewise, s. 790.25(5) does not restrict where you keep a handgun - as long as it is either “securely encased” or “not readily accessible”. Historically, the purpose of subsection (5) was to allow pistols to be carried concealed, and without a license, within a private conveyance despite <u>F.S.</u> 790.05, and the drafting confusion in <u>F.S</u>. 790.25 (2) & (3).<br />
<br />
<span style="white-space: pre;"> </span>And so, if anyone asks you if some of the language in <u>F.S</u>. 790.25 is confusing – the answer is certainly "yes", although the case law has crystalized much of it since 1982. On the other hand, can long guns that are not "repeating rifles" be carried openly in a private conveyance without being "securely encased"? Well, while I believe there is a sound legal basis for that interpretation if you understand the history of the legislation, I personally wouldn't try it. But, it is an arguable issue.<br />
<br />
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endnotes:<br />
1. In <u>Cates v. State,</u> 408 So.2d 797 (Fla. 2DCA 1982), the court held the firearm statutes were a “mass of conflicting rules” needing revision, and found that a pistol in a glove compartment slightly ajar was not “securely” encased. Likewise, in <u>Ensor v. State</u>, 403 So. 2d 349 (Fla. 1981), the court stated that a firearm was “on or about” a person even if locked within a glove compartment, with the dissent calling the statutes vague, and calling for statutory revision.<br />
<br />
2. Extremely instructive in understanding the thinking, and state of the law back in 1982, is the House floor debate on March 23, 1982, on these changes, HB 1173. I shall excerpt them for you:<br />
<br />
Representative Hollingsworth: [20:43] “You can already carry your weapon on the seat of the car in most instances. [ 21:25.]This bill has nothing to do with that. You can already do that. You can already carry your shotgun and rifle on your front seat. You can already carry your shotgun and rifle in your gun rack, as long as it’s in open view. In this bill, we’re going to allow you to carry the shotgun and rifle anywhere you want to in the vehicle, concealed or in open view . . . .”<br />
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Representative Reynolds: [24:33] “So what we tried to do, ladies and gentlemen, was to clarify the statute by allowing that individual to carry that firearm in the glove compartment of that car, the idea being that the weapon would not be readily accessible for the individual. There would have to be a two step motion on the part of the driver or occupant to move towards that glove compartment to retrieve that weapon giving the officer time to respond in an appropriate manner. The idea being that the weapon would not be readily accessible for the individual. [25:25. ] We were in a dilemma. If we allowed it to be on the front seat of the car we were gonna have problems because an officer would be alarmed. So, we wanted to put it in the glove compartment. That was a responsible position, ladies and gentlemen. . . . What we need, ladies and gentlemen, is to return to the original Hollingsworth position. Make it a two step motion for that individual. <b> One the turning, and two t</b>he reaching to go for that weapon. Because the key here, for law enforcement is whether that weapon is readily accessible or readily retrievable by the individual, to give the law enforcement officer a chance to react, and take the proper caution . . . .”<br />
<br />
Rep Hollingsworth: [38.01] “This will allow you, this piece of legislation, and all the news media to get it straight. This will allow you now to carry a concealed weapon in the unlocked pocket of your car. This will allow you to carry a concealed weapon under your front seat. This will allow you to carry a concealed weapon anywhere where it’s not readily accessible for immediate use. And, this is defined in the bill, which says as long as you cannot retrieve it as fast as is on your person then you’re gonna be allowed to carry it concealed. The rifle or shotgun. The hunter will be able to carry his rifle or shotgun anywhere in the vehicle, concealed or out in the open. If someone thinks their life is in danger, or there’s criminal activity in the area, then they can take their weapon from the concealed area and lay it next to their person in open view. Because you can already carry it in open view . . . .”<br />
<br />
3. In<u> Mitchell v. State</u>, 494 So.2d 498 (Fla. 2DCA 1986), the court found that an unenclosed rifle on the back seat of a vehicle did not furnish probable cause for an arrest. Likewise, a <u>Department of Hwy. Safety Legal Bulletin</u>, 88-02, reviewed the 1982 enactment of the subsection and found that it did not apply to long guns.<br />
<br />Jon H. Gutmacherhttp://www.blogger.com/profile/11713457967722761793noreply@blogger.com1tag:blogger.com,1999:blog-4176986417193426972.post-66121190257552021422018-03-21T05:23:00.003-07:002018-03-21T05:23:57.639-07:00Open transport to a range for shootingWe all know you can "open carry" when going to or from a range or other lawful shooting area for lawful shooting purposes. F.S. 790.25 -- But, could you be arrested for such, even though it's lawful?<br />
<br />
That was the email question I received from an instructor who had gotten a "yes" answer from several law enforcement officers. She asked if that was correct.<br />
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My answer was a qualified "yes". <br />
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You see, while "to and from" a shooting range for the purpose of lawful shooting is an exception to open carry -- it is almost always a "question of fact" whether you are actually going there (or coming back from), or just saying that to avoid arrest. For the officer, unless there is actually some evidence, if he or she doesn't believe you -- they can arrest you. Of course, you should eventually win the criminal case in court -- but then you'll have spent a night in jail, paid an attorney, have a criminal record, the weapon is seized as evidence and you often need a court order to get it back, and gone thru all sorts of hassles going to court. <br />
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On the other hand, if you're returning from a range and have a receipt that can prove you were shooting there -- I would say that is "evidence" that backs up your story. But still, you could be arrested, although in that instance I also think you'd have a good civil case for false arrest, and a basis for an internal affaires complaint to the officer's department.<br />
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Plus, you can't have a pistol "on your person" while in a conveyance per F.S. 790.25(5), and there is some controversy in legal circles (totally wrong) whether transportation of a pistol in a securely encased holster (strap is snapped across) left openly on a seat is legal or not. I can assure you it is legal from my research -- but I had to go back to 1948 as a starting point to confirm that -- and very few judges or attorneys have the research on that issue available.<br />
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So, the answer is -- there is a certain amount of risk in open carry even under the exceptions in F.S. 790.25. <br />
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OJon H. Gutmacherhttp://www.blogger.com/profile/11713457967722761793noreply@blogger.com1