The Orlando Gun Lawyer

Free Seminar on Self Defense of the Home -- February 16th

2012-01-13T14:06:00.000-08:00

Space Coast Community Law School is sponsoring a free seminar/presentation by me on home defense under Chapter 776 -- on Thursday, February 16th from 6:00 p.m. to 8:00 p.m. at the Brevard Government Center, 2725 Judge Fran Jamieson Way, Bldg. C, Viera. RESERVATIONS ARE REQUIRED -- and can be made on the following websites only: www.spacecoastcommunitylawschool.com or www.sccls.com -- or by calling them at: 321-269-6833. Don't call or email me -- I have nothing to do with it other than the presentation.

By the way -- I'll have copies of my book to sell at the end ($30.00 tax included) (cash only), and will be glad to autograph these, or any copy you already own. There will be time for questions after the presentation.

So, if you really want to hear it from the guy "who wrote the book" -- here's your chance. I don't do these too often.

Carrying a Self Defense Chemical Spray on School Property

2012-01-11T09:51:00.000-08:00

Question: Can a person carry a self defense chemical spray on school grounds:

Answer: Such is not unlawful under Florida law.

In a recent email, I was asked whether a 17 year old female could lawfully carry a self defense chemical spray on her college campus for defense. My opinion on this issue, as the law stands today – is a most definite “yes”. My reasoning is as follows:

F.S. 790.01 allows carrying a “self defense chemical spray” concealed without a CWP

F.S. 790.053 allows open carry of a “self defense chemical spray” .

F.S. 790.001(3)(b) – excludes a “self defense chemical spray” from inclusion in the definition of either a “tear gas gun” or a “chemical weapon or device”.

F.S. 790.001(13) – does not mention a “self defense chemical spray” by itself, or within the definition of a “weapon”, and therefore excludes it.

F.S. 790.115 – forbids the exhibition of any “weapon” and certain other specifically named devices at schools, and further forbids possession of such on school property. The section does not mention or include “self defense chemical sprays”, and thus – much like “common pocket knives” – it is not unlawful to be in possession of such on school property – including colleges.

Thus, it is my opinion that carrying a “self defense chemical spray” on campus is not unlawful. This is corroborated by the cases on “common pocket knives” which treat the exact question in the same statute. D.J. v. State, 36 Fla. L. Weekly D2781 (Fla. 4DCA 2011): C.R. v. State, 73 So.3d 825 (Fla. 4DCA 2011): R.H. v. State, 56 So.3d 156 (Fla. 4DCA 2011). Likewise, the statutes make no limitation on age for carrying such a spray. Only its intended use, and conformity to the size and content requirements.

Of course, a “self defense chemical spray” is defined as a “device carried solely for purposes of lawful self defense that is compact in size, designed to be carried on or about the person, and contains not more than two ounces of chemical”. F.S. 790.001(3)(b). The consensus of opinion – although not in any case law – is that the “two ounce” amount refers to the repellant spray – and not the propellant charge.

However, let me urge caution on at least one aspect of this. I strongly advise against open carry of a self defense chemical spray unless fully concealed within the hand – purely as a practical matter. My opinion on this issue has not been addressed by the courts directly (although the “common pocket knife” analogy would be next to impossible to get around) – and I seriously doubt that more than a handful of school administrators and law enforcement have ever looked closely at the issue, or even thought about it -- thus, there is a large margin for them making a serious mistake thinking it's against the law -- when clearly -- it isn't. Likewise, I would urge students not to tell their friends they are carrying a self defense chemical spray for the same reason – and also -- because it would be more to their advantage to have the element of “surprise” available if the spray is needed in any self defense situation.

Hope that helps.

copyright 2012 by jon gutmacher

some recent email questions

2011-12-28T05:11:00.000-08:00

Hello to everyone, and Happy Holidays! Thought I'd shower you with some of the more interesting emails I've received in the past week, and my responses. Here goes:

1. Use of deadly force by person over 65 to stop a battery perpetrated upon their self: I received an email that basically asked -- since a battery on a person 65 years or older is a felony -- then can't "deadly force" be routinely used to stop the battery because it's obviously a "forcible felony"? The answer is a glaring "maybe" -- because it isn't a "forcible felony" unless a "deadly weapon" was being used by the assailant or the victim suffered "great bodily harm". Surprise! Battery On the Elderly is NOT a listed forcible felony, and a battery is not a crime that necessarily is a crime of force! That's straight out of a Florida Supreme Court opinion! Add a deadly weapon to the attack -- it becomes an aggravated battery and/or aggravated assault -- which are "forcible felonies". Add great bodily harm -- and it becomes an aggravated battery. So . . . back to the primary "rule one" of self defense: the use of deadly force in such an instance is ONLY if you have a reasonable fear of death or great bodily harm -- or -- if the assailant is using a deadly weapon in the attack.

2. Email number two: Can you carry a machine gun concealed per your CWP? An interesting trick answer. I guess there's some confusion on this, and maybe the book didn't make it real clear how this works. You see, 790.06 specifically excludes machine guns from your CWP carry -- but -- 790.01 (concealed carry) also excludes from prosecution anyone who carries a concealed firearm (which includes machine guns), but has a CWP. Thus -- unless some court wants to really screw with the letter of the law -- if you have a CWP, you can lawfully carry a machine gun concealed -- not because your CWP allows it (because it doesn't) -- but because you're still OK under 790.01 -- as that subsection specifically excluded you. On the other hand -- I'm not sure how many people out there really understand this very clear concept. And -- you obviously still have some areas that are prohibited -- CWP or not -- just like any other weapons.

Ho Ho Ho

The Republican Candidates records on gun rights

2011-12-26T12:21:00.000-08:00

Are you wondering how the Republican candidates fair up on the issue of gun rights? According to GOA, the most aggressive of all Second Amendment organizations (ie: Gun Owners of America) -- not too good. Mitt Romney has a D- rating. He embraced the so-called Assault Weapons Ban back in 1994, supported the Brady Bill, and was quoted on his favoring "tough gun laws" by saying: "I believe they protect us and provide for our safety". So -- if it's between Obama and Romney -- you're gonna have a really tough choice if guns are your primary issue -- because if it were not for Obama's all out backing of the UN Arms Trade Treaty --he'd likely be the better choice for gun owners. In fact, if Romney ever has to give in on something to gain political leverage -- gun owners beware! He has zero allegiance to our beliefs! Newt is somewhat better. While he did support the Brady Bill (which -- admittedly had some good points) -- in his favor -- he was strongly against the Assault Weapons Ban, and was vocal on that. However, as Speaker of the House he voted for the absurd "Gun Free School Zones Act", and the law that forever prohibited firearms ownership for anyone convicted of a misdemeanor crime of domestic violence -- no matter how slight the alleged domestic violence was. Both horrible pieces of legislation -- and substantially anti-Second Amendment. Because of his record -- GOA has rated him a "C". Better than Romney, but no firearms patriot, by any means. As to the rest of the Republican presidential crew -- pretty darn good! Of course -- they're out of the race -- but Bachman, Rick Perry, and Ron Paul all got an "A" rating or better, and Rick Santorum got a B-. So -- if guns are your thing -- you'd better make damn sure you vote Republican for the senate. That's where your pro-firearms votes will really count.

790.251 -- parking lot law -- a quick explanation of this Florida gun law.

2011-11-15T09:49:00.000-08:00

I received an email regarding the parking lot law, and it brought up an issue that is likely widely misunderstood. The parking lot law [790.251] does not make anything "illegal". It just has "exceptions" to the general rule that an employer can't prohibit a securely encased firearm in a parked vehicle by an employee with a CWP. The exceptions simply mean that if the employer falls within them -- they can have a policy that prohibits the firearm storage -- and fire or discipline an employee who breaks the policy. No crime.

What usually happens is if your employer falls into this area, and has such a policy -- and finds out -- you could get fired or face discipline. If you have a union -- they can probably help you. But, many employers simply fire the person, and then have them "trespassed" from the premises. If that happens -- and you don't leave -- you have committed the crime of trespass, and may even have a charge of "armed trespass" if you're in actual possession at the time. Then you could face arrest. Check out the book on "armed trespass" for a greater explanation.

Hope that clarifies it.
jhg

Spring assisted knives

2011-11-09T15:01:00.000-08:00

I've handled a couple of cases involving spring assisted knives, and I thought I'd do a short article on some of the issues. As you probably know -- it's not a crime to carry a "common pocket knife" concealed without a CWP -- but what the heck is a "common pocketknife"?

Well . . . the Florida Supreme Court says, at a minimum -- it's any pocketknife that has a 4" or less blade that folds back into the knife. It might extend to other types of common pocketknives -- but that's the current presumed somewhat "safe" definition of "common". It sounds nice . . . but having little knowledge of how these things really work -- the appellate courts of Florida have managed to screw this easy definition up by adding that it can't have "combat knife" characteristics. Whatever the hell that means.

So -- in essence -- it boils down to who is the responding police officer, who is your State Attorney, and if worse comes to worse -- who is the judge, or who's on the jury. (and having a real good attorney who actually understands this stuff, doesn't hurt, either).

A spring assisted knife is, according to federal law -- is a type of "switchblade" knife that gets special treatment under the law. You can sell and transport "spring assisted knives" across state lines per federal law -- but not ordinary switchblades. That's because the "spring assisted" has a detent or other mechanism that requires movement before the spring release comes into operation. To be honest -- you'd probably need an expert to tell the difference other than you usually have to give the release a bit of a push in the spring assisted.

On the other hand -- since 2009 when federal law changed -- these knives have taken over the pocketknife market. They easily outsell anything else by over 50%!!! If you go to a gun show -- or go to a knife store -- this is gonna be the most prolific knife you'll see on display -- and the most popular seller you'll encounter. Plus -- to be honest -- they really are the most useful since one hand operation is really handy -- and in an emergency -- almost a necessity.

But . . . is it "common"???

Well . . . if you're into this stuff . . . sure! Everybody is buying them -- and in the personal carry knife owner market -- has them. Just make real sure the blade doesn't exceed 4 inches. Plus -- to be safe -- you'd want the blade to "fold" into the knife vs. "retracting" into the knife. I'm not saying it couldn't -- I'm just saying that isn't really safe for now -- because it's a jury question the way the law sits today. One jury may say "fine" -- it's a "common" pocketknife. Another may convict you. Sucks!

The courts have not resolved or even really addressed the "spring loaded" issue. And, when you talk about the stupidity of also trying to define a "combat" style knife vs. "common" -- we get into all sorts of issues such as blade thickness, finger guards, type of point and edge, etc., etc. etc. Again -- the real problem is most judges don't know knives, most jurors have no idea about knives, most attorneys are clueless, and since the appellate courts rely on the attorneys for info on these type cases -- they know even less -- because the entire legal chain lacks experience and familiarity in the area.

So -- my advice?

I'd personally stay away from carrying a spring loaded knife unless I had a CWP, or was at home. Hopefully, someday an appellate court will look at the issue with intelligent attorneys -- and make an intelligent decision. Although, if you're in the Third DCA's jurisdiction -- probably you have no hope, whatsoever. But -- the other districts do have some judges who understand this stuff -- and with luck -- maybe the case will have attorneys, who do, as well.

So -- that's the state of the debate at the present time. Hope it helps

jhg

copyright 2011 by jon gutmacher

Non-immigrant aliens at shooting ranges

2011-11-09T14:26:00.000-08:00

I've been asked several times in the last few months whether a visitor from another country (England and Canada usually) can rent a firearm at a gun range. The answer is an absolute "no" -- unless they have a valid hunting license, or one of the other more involved exceptions for consular personnel, or acceptable proof of admission to the US for a sport shooting event. Unless so excepted, these foreign visitors are "prohibited persons" under the law -- and you can't loan, sell, or rent a firearm or ammo to them -- unless -- they fall into one of those narrow exceptions.

Is there a legal way around it?

Sure!

All you need to do is be authorized to issue a temporary hunting license to them. The license can be from ANY state -- not just Florida. So -- if you can get authority to issue a Connecticut license -- it's perfectly fine in allowing use in Florida. Silly -- but that's what the federal law allows. Again -- that's for temporary use.

I know ATF hasn't been heavy on enforcing this -- but if they did -- kiss your FFL goodbye, and hire me quick for the federal felony. So . . . I suggest you look into becoming a distributor of hunting licenses from other states if you run a range, or even if you feel like lending your British buddy your firearm at your home firing range. Like I said -- I think Connecticut allows temporaries without the hunter/safety course. You'll have to check that on your own. This is just the lowdown on the issue.

Of course, if you don't keep records on who you lend to on premises -- nobody will likely ever know (unless they get serious on this stuff and send in a confidential informant -- ATF's usual method of getting the dirt on people). But -- my philosophy is -- why take the risk?

Hope that helps
jhg

Must a person reveal being armed to law enforcement?

2011-10-18T09:01:00.000-07:00

I received an email from a Florida law enforcement officer asking if there was any legal authority that required a citizen to advise an officer the citizen was armed, upon making contact. My response is in the book, but also follows:

Unlike some states, Florida has no requirement for a person to inform an officer he is armed. This seems to be vastly misunderstood by law enforcement. However, a CWP holder who is in actual possession must display his CWP to a law enforcement officer upon request. 790.06(1). That may be the source of the misunderstanding. Thus, if asked -- and only if asked -- a CWP holder must display their CWP license -- but still has no legal responsibility to advise they are armed -- although a denial or refusal would be kind of stupid at that point. Likewise -- someone without a CWP who had a firearm securely encased in a vehicle has zero responsibility.

I normally suggest that a citizen NOT advise an officer they are armed unless the firearm will most likely be seen by the officer, or the weapon is near identifications which need to be retrieved. In those situations it is stupid not to tell the officer. Likewise, if an officer asks a person if they have any weapons or firearms -- I advise citizens never to lie. (lying is not a crime unless they've been placed in lawful custody) However, I normally tell a citizen to use the "magic words" -- "Officer, I have a lawful firearm securely encased in my vehicle"; or "I have a CWP", or whatever. An answer such as: "I have nothing illegal or anything you need to worry about" -- while probably not satisfying to the officer, would also be truthful and legal -- but I normally prefer the "magic word" honesty approach.

Hope that helps
jon gutmacher

County employee parking with a CWP

2011-10-08T16:53:00.001-07:00

I received an email from a county transit worker about regulations forbidding firearms in employee parking areas. While I have eliminated the name of the individual and the employing transit system, I think my response will be typical of the type of cases that will come up under the amendments to the preemption law. Here's the question, and then my response:

My question is: Can the Public transit system still prohibit me from having my firearm in my personal vehicle glove compartment in their parking lot under the new law? I asked if under the new law was it ok and they said "no" from company policy the operator rule book, notice company property which could mean parking lots. Company property is all facilities. The section on weapons reads "operators shall not conceal or display weapons of any kind on buses or any company property. This includes knives, firearms or chemical agents designed to disable a person."

My response is as follows:
The preemption law forbids them from having any regulations pertaining to firearms and ammunition, whatsoever, unless such are exempted from treatment by C.790. In my opinion, any attempt to regulate employee parking where the employee has a valid CWP, and the firearm is securely encased and hidden from view violates the preemption law, as it violates Florida Statute 790.251, and can be addressed by a civil suit for injunctive and declaratory relief, and attorney fees. Quite frankly -- you should get a confirmatory letter of their interpretation -- as they might otherwise claim that by "company property" they did not intend to include lawfully parked employee vehicles, or if they refused such, you could send a letter by certified mail to the agency head, agency attorney, and board members asking them to confirm what was told to you, and your concern this may violate the preemption law. (I used "may" just to be polite)

Of course -- all other regulations as to use, carry, or display during work hours should likely be lawful. And, to be clear -- the preemption law does not apply to other weapons -- only firearms and ammo.

jhg

Sales of multiple firearms from a collection - dangers

2011-10-05T05:40:00.000-07:00

I write this article to warn of possible dangers with ATF on multiple sales of firearms from a collection. While normally totally legal, where you are regularly selling on sites such as Gunbroker.com -- you may attract the attention of ATF. The problem, obviously -- is that while it is perfectly legal to buy and sell to enhance your collection -- once you start doing it as a "business" -- that is with the motive that you will be doing it for primarily as a profit making venture vs. the long term -- you are walking a very thin line between what is legal -- and what is a federal felony. In order to sell firearms as a "business" -- you need to be licensed by the feds as an FFL (federal firearms licensee). So -- while I understand that larger collectors are buying multiple guns looking for ones they consider "perfect" for their collection -- and selling the ones that don't meet those expectations -- that constant selling off of the rejected ones -- "looks" like a business.

So -- how do you handle this from a practical side -- because sooner or later -- ATF may zero in on you, and check you out.

Well -- my first suggestion is that you keep a list of the firearms you buy -- with the date, make and model, and purchase price. You also mark the quality as "acceptable", "fine", or "not acceptable". You also mark whether you shoot the firearm. You note the date you sell it -- and where you ship it to -- and if it's out of state -- it better be to an FFL! And . . . one other suggestion you're not gonna like -- you keep each firearm you purchase for at least one year.

Why?

Well . . . if you're making a profit on each of the guns you sell -- even if they don't live up to the expectations of your collection -- it may look like a business. However, if you're primarily or equally selling for a loss or break even -- that doesn't look like a "business" to me!!! With a list, as I've suggested, you have a comparison on how many guns you sold for a profit vs. a loss (even a very slight loss) or break even. If you figure in shipping -- maybe it's more of a loss. But, overall -- selling off crap (pardon the expression) should not be something where you're making an appreciable profit over the course of a year. The closer you are to a loss -- or break even -- the more it looks like a "collector" -- and the less it looks like a "business for profit".

Likewise, if you have fired a firearm -- you've affected the value in a negative way. So, the more you're testing your collection -- the less it looks like a business. You "look like" a collector. You look like someone who enjoys the item. In fact, just taking it out once and putting ten rounds thru it is enough. It shows you were interested in the firearm as a "piece" vs. as "merchandise" -- because you're making a personal evaluation, and also having fun with it. The more you shoot it -- the less likely it's anything but part of a "collection". That's why that can be an important part of the "list" I suggested.

And, the thing about a year? Well . . . that's because where a dealer takes a gun out of inventory for at least a year -- and puts it into their personal collection -- that's the "approved" time per the federal statutes. So, it can be argued -- if that's OK for an FFL -- it should be OK for you, too.

Now, I'm not saying you need to follow this article word-for-word. I'm just saying that the more concerned you are about ATF misunderstanding what you're doing -- and the more concerned you are about preserving your Second Amendment rights (cause a felony conviction in federal court ends that real quick) -- the more you should try to adopt at least some of my suggestions.

Last, but not least -- how is ATF really gonna zero in on you?

The likelihood is that they will already have looked at the volume of sales, prices, and likely profit or loss. They'll have an agent or confidential informant set up a buy of a firearm or firearms from you on a face-to-face transaction. When you meet-- the buyer will have a friend with him, or maybe just themself. At the last minute the friend or the agent will let it slip that he or she "may have" or "does have" a felony conviction, or domestic violence conviction, or got convicted once for hitting his wife, etc. DANGER!!!!!

All of these facts are trying to set you up for a felony sale to a "prohibited person". Selling to a prohibited person is a federal felony! They're testing your honesty -- and trying to set you up! If you go thru with the sale -- you're gonna be spending some time in federal prison unless you get very, very lucky -- with a really good lawyer. (and still be -- very, very lucky) So -- don't do it!

I tell everyone that when selling a firearm (or even ammo) -- you should ask the other person if they are a "convicted felon or have any other legal prohibition on firearms ownership". If they say they "don't know" -- DON'T SELL IT! They're either working for ATF -- or you're likely committing a crime, anyway -- and sooner or later -- it may be tracked back to you. It just isn't worth the chance! Typical private attorney fees on a simple federal case start at not less than ten grand -- and that's cheap!

So -- that's the scoop. Of course, if you're only selling maybe five to ten guns a year -- ATF could probably care less -- but still -- following my advice couldn't hurt.

Hope that answers some questions

jhg

copyright 2011 by jon gutmacher

Quick clarification on CWP carry in a vehicle

2011-09-29T05:12:00.000-07:00

For some reason I keep getting emails asking for clarification on how a CWP holder can carry in a vehicle. The confusion is whether they must carry "securely encased" or can they carry some other way under their CWP, as long as the firearm is concealed. My opinion is that the law is very clear that you have a choice of doing it either way. 790.06 (the CWP section) and 790.25(5) (the securely encased section) work completely independent of each other. So -- the choice is yours. Either way -- with a valid CWP -- my opinion is you're totally legal as long as it's not a prohibited area.

Hope that helps.

jhg

ASIS International Convention in Orlando 2011

2011-09-25T08:43:00.000-07:00

For those of you who don't know, the ASIS (American Society for Industrial Security) International, held their 2011 convention in Orlando recently (Sept 19-22), and was just an AMAZING experience! I was invited as a member of the press, and was given full access to the seminars and meetings -- and let me tell you -- even being in this business for over thirty years -- what an eye opener! This is the premier organization in the world on corporate and government security issues -- and anyone in the industry who is anybody -- belongs! Not only did they have Jeb Bush, Vincente Fox (former president of Mexico), and Janet Napolitano (Secretary - Dept. Homeland Security) as featured guests - but almost 400 major topic seminars were held over the four day period on every possible area of the security industry. You just had to pick the ones you needed most, and regretted you couldn't see them all. (although you can purchase them as a member or non-member on the ASIS web site). And, if you want a rough idea of the power of this organization -- they rented out the entire Universal Studios Island's of Adventure for an evening bash! That's right -- the entire place -- just for the members! Wow!

I never really thought of all that corporate and government security entails -- and all the specialties it breaks down into. Of course, my major interest primarily dealt with direct threat security issues. But -- did you know that also breaks down into entirely separate spheres such as: hospital; restaurant; hotel; food processing; water; casino; corporate; military; foreign; dignitary protection; corporate executives; employee, etc. That breaks down into: upper management; surveillance; anti-hacking; fraud; loss; customer security; workplace violence; computer systems; software systems; video; barriers; background checks; security checks; etc. etc. etc.!!!! And . . . that still continues to break down into other sub-categories!

What can you take from this?

Well . . . aside from the fact that there's lots of room in the industry for new people -- you understand that ASIS is a true resource for information. You can purchase the books, and the disks on their site. You can join -- and really open your eyes if you're in any phase of management or in the security field. And . . . you can see how many areas there are to understand, and work in.

Let's take threat management, for instance: What is the threat to your particular business -- or you could even apply the same principles to your home. In a small office: is any employee a possible target for domestic violence? If so, when the nutcase boyfriend comes in shooting -- are you ready for it? In fact -- what did you do to prevent that situation in the first place? Does what you do, or didn't do -- make it better or worse? Have you engaged the rest of the employees to be your "eyes and ears" on looking for the warning signs? Do they understand it's "their safety" that's involved -- not just the other guy? Can they report it easily? Will there be any repercussions if they report it? Is the person who they report to trained -- in how to assess the information, and what to do next? Is there any review process. And . . . it goes on and on. And unfortunately -- those who take the problem most seriously -- are those businesses and corporations who have had a huge tragedy in the area, or a really close "near miss".

Want an example?

Take the very recent case of Enix v. State, 36 Fla. Law. Weekly D2010 (Fla. 2DCA 2011). There, Mr. Enix decided it would be a good idea to get some money from Publix. How? He'd kidnap the wife of the manager from one of their stores the day before the armored car arrived -- hold her for ransom -- and the manager would be forced to give him the cash! So -- what does our buddy Enix do? He goes to Publix with a friend, gets the managers name off his photo on the wall, does an online search to locate where he lives -- and the plot is alive! Fortunately, his friend tells the cops, and the entire thing is intercepted before it gets much further. But -- that's just one of the things corporate security needs to be dealing with. And, it also gives you an idea how vulnerable we all are to criminals like this.

So -- my thanks to ASIS for the opportunity to report on an organization that is beyond "first rate". They're absolute tops! And -- for probably the best convention I've ever been to in my life -- and that's saying a lot.

Marksman 2002 repeating air pistol

2011-09-18T08:59:00.000-07:00

On August 3, 2011, the Second District Court of Appeal issued an Opinion in Goodwin v. State, 36 Fla. L. Weekly D1695 (Fla. 2DCA 2011), which affirmed a jury verdict finding the use of the Marksman Model 2002 air pistol (in a robbery) could be determined to be a "deadly weapon". Initially, you wonder what the jury and judges were drinking when you read the Opinion, because this is a spring action pistol type BB gun that only shoots at 200 fps! That's so slow that it's hard to get it thru thin cardboard! Most of the slow stuff starts around 325 fps. But . . . maybe they really got it right???

The Marksman shoots standard size copper or steel BB's -- .177. It also shoots darts, bolts, and .177 pellets. While there was testimony in this case that the BB can't even penetrate an eye at that speed (tested on a dead pig eye) -- the problem is likely that if loaded with a dart or pellet -- it could. Now -- I'm not saying that makes it a "deadly weapon" -- because a deadly weapon is one that is "likely to cause death or great bodily harm by its use or design) -- and to me . . . unless it's loaded with something beyond a simple .177 BB -- or at least the criminal is carrying additional ammo darts, or pellets on his person for ready use and loading -- it just is NOT ordinarily possible the gun is more than a souped-up toy. In fact -- even with the darts loaded, unless you tip them with poison, or aim for the eye -- this is really a far far stretch of the imagination saying it is a "deadly weapon". I just saying -- I understand how this could confuse some people, including judges, who probably don't understand anything about firearms or weapons, in the first place -- and have little sympathy for someone committing a robbery.

Could the same result occur if the gun could only fire BB's? Damn -- I would hope not!
How about just airsoft?

Well . . . glad you asked . . . because Airsoft uses a plastic BB (different sizes) -- which have even less penetrating power than the steel and copper. BUT . . . and this is the big "but" -- they are still classed by Florida law as a BB gun -- and thus -- some judge who knows less than nothing about this stuff -- could say that: "Hey, we found 200 fps to be OK for a deadly weapon in the Goodwin case -- what's the difference!"

Anyway -- the moral:

Don't rob a store with the Marksman 2002. Or -- send a judge a copy of my book so they can understand this stuff as well as you do. Have a great day!

jhg copyright 2011 by jon gutmacher

Can a non-resident alien own or possess weapons?

2011-09-12T12:09:00.000-07:00

I received a question from someone who has the book, who was trying to help a friend. As a reminder, "having" the book will not help you unless you also "read" it -- although there was a slight twist to the question on whether a non-resident alien could own other weapons -- if not firearms. Federal gun law is very clear on the firearm and ammo issue -- a big "no" -- UNLESS -- you have a valid hunting license. But as to any other weapons besides firearms (and ammo) -- you're clear to go as long as you obey the law. So -- a non-resident alien could still own a Taser, knife, or whatever else you can think of other than firearms, weapons, and destructive devices. Hopefully, they'd also have (and read) a copy of my book -- so they know what they can or can't do with it. [Florida gun law; Federal gun law]

jhg

Firearm transportation in a vehicle on school property

2011-09-09T21:16:00.000-07:00

One of the seemingly more confusing areas of Florida gun law is whether you can transport a firearm in a vehicle on school property -- from a standpoint of picking up a student -- or campus parking. Federal law is also involved in this situation. Here's how it works:

1. Florida gun law does not allow anyone to display a firearm or weapon in a rude, angry, careless, or threatening manner within 1000 feet of any school property from elementary thru and including high school, public and private during school hours. Likewise -- can't display on a school bus, school bus stop, or school sponsored event. The exception is when you're on private property with permission, license, or invitation of the owner -- within 1000 feet of school grounds. F.S. 790.115(1). That covers "display" under Florida law. Federal law adds you can't even possess within 1000 feet of a school -- unless you have a valid CWP, or the firearm is unloaded and in a locked container or rack on the vehicle. 18 USC 922(q). (A few other exceptions apply that I have omitted for clarity sake)(read the book for that).

2. Florida law generally does not allow anyone to even POSSESS a firearm or weapon (except a common pocketknife) "on" school property, a school bus, school bus stop, or school sponsored event -- and adds to the definition of "school" -- "post secondary" schools -- meaning colleges, universities, and career centers.

However . . . despite the overall prohibition on "possession" -- you may lawfully possess in your vehicle, per F.S. 790.25(5) -- so long as the firearm is "securely encased".

But, what if a "school district" adopts a written and published policy that waives this exception for "purposes of student and campus parking privileges"? Well then, according to the subsection in 790.115 we're talking about -- you no longer can possess in your vehicle -- even securely encased -- where it involves "campus parking privileges".

Now -- whoever wrote this last subsection of the statute -- should be shot, horse-whipped, and drawn-and- quartered. It's God-awful drafting, confusing, and stupid, besides! But -- it's there. What does it mean?

Well -- it means that nobody is really sure what it means!

For instance: does "purposes of student and campus parking privileges" only apply to students, faculty, administration, and other school employees who "regularly" park there -- or -- does it apply to everyone, all the time, even for a one shot, five minute or one hour stop at the school? That first one seems the most probable interpretation as far as I'm concerned -- and the one I vote for. But, truthfully -- I could be wrong. It's just too vaguely written to really know.

So -- the next question would be: Does it also apply to even moms and dads picking up their kid while passing just a few minutes waiting in the parking lot, or even going thru the drive-thru for your kid? What about parking the car for a few minutes while you're still in the driver's seat with the motor running? What about parking the car for a few minutes -- still behind the drivers seat -- but this time with the engine turned off? What if you get out of the car?

In other words -- where is the line between "parking" and "just waiting" . . . or is there a difference, at all?

Well -- the way it's worded -- and assuming it's constitutional -- my guess is that if the school district writes and publishes such a policy that forbids parking -- it should certainly be effective to forbid any such parking by students, faculty, administration, and school employees -- because that logically is a "campus parking privilege issue". Why that makes any sense to require -- is beyond me -- but that seems an obvious interpretation of this the law! Likewise, you should be aware that the law only allows a "school district" to pass this absurd prohibition. It can't be the principal of the school, or anyone else. It's actually gotta be the entire School Board that votes on it, passes it, and has it published.

Of course -- still just plain stupid! But, back to the important question: Does it apply to everyone else?

Again -- my response is that that's a total grey area! Nobody really knows -- and probably never will until there's a "test case" where an appellate court issues an opinion we can all then rely upon.

But there is one ray of hope in the "possession" area. The ray of hope is that -- assuming there's really such a written and published prohibition by the school district -- unless you know about the regulation, and deliberately ignore it (ie: "knowingly and willfully") -- you haven't violated the statute for having a firearm securely encased in your vehicle on school grounds. F.S. 790.115(2)(b) & (c). That should mean that unless such a prohibition is clearly posted as you drive on campus -- or you are stupid enough to admit you know about a published rule that forbids your parking -- you have a very good defense under the statute. Plus, if there's no "written and published policy" forbidding it -- then obviously, it's totally legal for anyone 18 years of age or older to possess securely encased in a vehicle while on school grounds, per 790.25(5).

Still -- you may have a problem with federal law -- because that says if you're within 1000 feet of a school zone (that includes the school grounds) and you know or should know you're within a 1000 feet of such -- you either must have a CWP, or have the firearm unloaded, and in a locked container or rack. So -- like I tell everyone -- better get that CWP!!!

Of course -- any of that can be an issue of proof at a trial if someone finds out you have a firearm, and the school police officer decides he or she is gonna arrest you no matter what you say -- but, it is a very good defense. Still -- it's a felony charge under both Florida and federal law -- although the feds could care less unless you're a terrorist, or selling drugs.

What about colleges and universities? Can they waive the exception, and prohibit parking for guests and parents the same as a "school district"? (federal law does not apply here - it only applies thru high school).

Well -- when you get to colleges and universities -- there's a case that says they probably can't -- because they're not considered part of a "school district". If they're not part of a "school district" -- there's no way to legally pass such a prohibition. But, unfortunately, that portion of the case opinion is not binding law because it's something called "dicta". So -- it's still a grey area on colleges and universities as to "guest" parking -- and even grayer as to students, faculty, etc. Plus -- my guess is that if a college student has a firearm in their vehicle parked on campus -- and the administration finds out about it -- and such is forbidden by a student manual or rule -- you're still gonna have big problems with the school, and possible expulsion, even if you have a valid defense to a criminal case. And -- the parking lot law doesn't help you or anyone else on that issue because schools are exempted from the parking lot law.

So -- what's the answer?

Well . . . obviously: Tell your legislators you want the stupid provision in F.S. 790.115(2)(a)(3), that allows a "school district" to prohibit parking on campus -- to be modified and deleted. Or . . . maybe, just prohibit it to "students" at secondary schools, and those under 18 years of age? (a "secondary school" is 6th grade thru 12th grade).

And yeah . . . I understand your frustration on trying to understand this ridiculous stuff . . . because now you may be more confused than when you started. You're certainly gonna have to read this a few times to understand it. Plus, you don't want to disobey the law -- but you don't want to leave your firearm at home, and be unprotected -- either. A truly rotten choice -- and you gotta wonder how the Legislature figures the Second Amendment and your Florida constitutional right to self defense can allow that? Me, too! That's exactly why we need to trash this stupid law!

Whatever -- hope I've helped you more than confused you!

copyright 2011 by jon gutmacher [Florida gun laws -- Federal gun laws]

Carry to approved hunter safety class at private school in Florida

2011-09-09T05:50:00.000-07:00

I received an email today involving Florida gun law that is worth commenting about. The email was from a hunter safety instructor who had permission to hold classes at a private school cafeteria on weekends. He said that students were insisting they could bring firearms to class. He asked me if that was legal. Here's my response:

It is my opinion -- opinion -- that 790.115(2)(a)(1) permits the carry of firearms to such a class ONLY where the principal or chief administrative officer of that school has preapproved of the exact class or classes. A letter from that person with the dates of such approved classes, and the nature of the class (ie: hunter safety), and the fact that firearms may be carried -- should be retained by the instructor, and I would HIGHLY advise that copies be given to each student with a copy of 790.115 -- otherwise you're asking for trouble. I hasten to add, that because of the language of the statute -- it is probable that not just the "class" be preapproved -- but also that the "possession of firearms and/or weapons" be preapproved in the letter. Without that last part -- the OK for firearms at the class -- it is probable carrying is NOT authorized by the statute. This opinion also applies to a public school.

Hope that helps.

copyright 2011 by jon gutmacher [Florida gun laws]

Stinger pen gun

2011-08-18T20:27:00.000-07:00

I received an email about the Stinger pen gun, and whether it was an NFA firearm, or could be purchased like a normal firearm. While that may not be of interest to lots of people -- the background understanding why it is legal, and not governed by the NFA is good to know. My answer is that this type weapon currently conforms to the definition of a "pistol" or "hand gun" because it has a rifled barrel, and is hinged so that in order to fire it, you must bend the rearward portion downward -- which thus forms a grip below, and angled to the barrel -- hence, fitting the definition of a handgun. If for any reason the barrel was not rifled -- or the pen gun could be fired while not in the angled position -- it would become "any other weapon" under the National Firearms Act -- and require obtaining the tax stamp from the feds prior to possessing it.

jhg [Florida gun law -- Federal gun law]

Would you believe -- radio tracking devices on all Italian import firearms?

2011-07-29T09:47:00.000-07:00

Well . . . if I didn't read it from the distributor, I wouldn't have believed it -- but -- it seems in Italy, all firearms must have a radio frequency identification device for security and other purposes. It's Italian government mandated, and while they claim "big brother" is not currently electronically monitoring your firearm -- you'd better remove the sucker before they do. According to Chiappa Firearms -- it's hot glued inside the grip, and easily removed. Their distributor even shows you how on their blog. "Shults Media Relations, LLC" . Atsa not nice!

jhg [Florida gun laws -- Federal gun laws]

Question on "printing"

2011-07-25T17:26:00.000-07:00

Well . . . I thought all questions regarding Florida gun law on printing were now dead thanks to the passage of Senate Bill 234 -- which now makes it legal for a CWP holder to "briefly" expose a firearm -- but, alas -- I was wrong. Unfortunately, it's another misconception from a law enforcement officer -- so here's the email I got, and my response:

Email: My brother in law who is a police officer tells me it is a crime if your firearm prints under your clothing. I say it's not -- and all the posts I read agree with me. Who's right?

Answer: You are. First -- the question shouldn't matter anymore since it is now lawful for a brief but temporary exposure of a firearm with a CWP. SB234 -- became law in June. Second -- CCF is illegal only if you don't have a CWP. If you have a CWP -- either the firearm is "concealed" or it is "open carry". There is no legal "inbetween" distinction. So . . . ask him how he figures "printing" is the same as "open carry" -- because open carry means (from a ton of case law) that other persons can immediately tell that the object that is printing is obviously a firearm vs. something else. Plus, even if there was a situation where the printing was so obvious -- still, in Florida -- the law has, for over twenty years, been that inadvertant exposure of a firearm is not a crime as it lacks "scienter" (ie: guilty knowledge). His misconception is most likely based on a totally different issue within the law enforcement area -- that "printing" may give rise to a "reasonable suspicion" that a person is armed -- which is true. But, it is still NOT the same thing as saying the firearm is open and obvious to ordinary site. A great false arrest case in the making for some attorney!

Hope that makes it clear.

jhg [Florida gun laws -- Federal gun laws]

A final comment on the Casey Anthony case

2011-07-21T05:27:00.000-07:00

When the Casey Anthony case first came out I made my feelings clear that it was not a case that should have been filed as a first degree murder, and that if the death penalty was somehow imposed -- that it would not withstand an appellate attack. I told my friends within the profession that it was a huge waste of money, and had to be politically motivated from a media standpoint. I even went so far as to post some of my feelings on this blog.

Watching the case unfold on television only confirmed what I had previously said -- and while impressive and intense -- the evidence never answered how the child died, who was involved in that if anyone, and what part Casey Anthony played. In other words -- sure -- it was suspicious as hell! Sure -- she was involved in the cover up!   But, the cover up of what? An intentional murder? A pure accident where mom or grandfather was afraid there might be criminal charges for neglect? Or, something worse -- using chloroform to knock the kid out so she could party -- and accidentally using too much causing an overdose, and a stoppage of breathing? (that would be aggravated child abuse -- and also serve as a basis for first degree (felony) murder -- in my opinion the most likely scenario -- but still -- not a death penalty case! -- and certainly -- still a complete guess!

So -- did the jury do the right thing?

Damn straight, they did!   Besides that -- they did it despite the lynch mob mentality that prevailed with the public -- where the media was whipping everyone up into a media feeding frenzy to keep those ratings up! Disgraceful!

And what about Jose Baez?

Well . . . despite being torn apart on a daily basis in the media - despite receiving daily threats - despite having to devote probably every moment of his time to one monster of a case -- that no lawyer in their right mind would want to take -- he held his own with honor, and did the job he is sworn to do under the law and the Constitution -- and by doing so -- upheld both -- and protected us all!

"Us all?"

Yeah!

Because the thing I hear . . . again and again from clients . . . is that nobody believes it could happen to them (a false charge) -- until it happens to them! When the ceiling falls in -- it's the same Constitution and concept of "beyond every reasonable doubt" that protects our society and citizens from the abuses of government bullying and overreach. It doesn't always work -- because the government can be the biggest bully of them all -- and frequently is. But, it's the best thing out there. And, the Casey Anthony case proves it works.

As to the media -- they should be ashamed of themselves for blowing this case up far beyond what it ever deserved. As for the State Attorneys Office -- I still don't understand how the hell they made the awful choice to prosecute this case as they did. As for the nut case citizens who gawked on the Anthony's lawn, visited the site where the body was found, and formed crowds on street corners -- Get a life!   And as to Casey Anthony -- I have no idea what you did, or why you did it -- but I sure as hell know there's something seriously wrong with you -- and don't come knocking on my door!

And last, but not least -- to all the politicians who are now going to propose draconian legislation to "fix" what doesn't need to be fixed -- try reading a little history, and understanding that it worked just the way it was supposed to.

Anyway -- now you know how I feel about the case.   That's all I have to say about it.

New federal gun law decisions involving the Second Amendment

2011-07-11T20:01:00.001-07:00

The parameters of the Second Amendment continue to be explored since the Supreme Court decided District of Columbia v. Heller, 554 U.S. 570, 635–36, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008); and McDonald v. City of Chicago, ––– U.S. ––––, 130 S.Ct. 3020, 3026, 177 L.Ed.2d 894 (2010). In Heller the United States Supreme Court held that the Second Amendment was a personal right of self defense, and in McDonald, the Supreme Court held that the Second Amendment applied to the States by virtue of the Fourteenth Amendment. Thus, these two landmark cases established, for the first time in our Nation’s history, that both the federal and state governments were restricted from passing laws and regulations in contravention of the Second Amendment. Of course, local governments were not deterred from their unconstitutional ways, and the Second Amendment Foundation, together with some friends, took up the fight which resulted in two major federal appellate wins that expand our understanding of the breadth of the Second Amendment.

jhg [Florida gun laws -- Federal gun laws]

The newest of these is Ezell v. City of Chicago, 2011 WL 2623511 (7th Cir. 2011), decided July 6, 2011. Sort of a Fourth of July present to the citizens of this country. The case decided that the City of Chicago’s ban on commercial shooting ranges within the City unconstitutionally burdened the Second Amendment, as the right to keep firearms for self defense also included the right to train, and maintain proficiency in those weapons! Moreover, the City could not ban citizens from taking firearms from their homes – as that also meant they could not transport them for training purposes. Thus, the federal appellate court overturned the District Court, and ordered that a preliminary injunction be issued prohibiting enforcement of the Chicago ordinance. Big win for the Second Amendment Foundation (and all citizens). Big win for ranges across the country, as a decision from a federal appellate court is a major victory, and serves as heavy precedent for other cases.

Likewise, in Dearth v. Holder, 641 F.3d 499 (D.C.C. 2011), decided on April 15, 2011, the federal appellate court for the District of Columbia Circuit was faced with a situation where the District Court had dismissed Mr. Dearth’s claim that federal statutes and regulations unconstitutionally prevented him from purchasing a firearm, in derogation of the Second Amendment. Dearth is a U.S. citizen who lives in Canada, and regularly visits the United States. He wanted to purchase a firearm here, but since he was not a resident of any State – federal laws and regulations prevented him from purchasing. He sought declaratory and injunctive relief to declare the statutes and regulations unconstitutional to his situation. Here, the federal appellate court reversed the ruling of the lower court holding that Mr. Dearth had stated an actionable claim, and that the District Court was required to take action on it. While the case did not declare the statutes and regulations unconstitutional – it did make clear that the denial was a denial of Second Amendment rights. Thus, it should be interesting to follow what happens next in the case.

Of course, this is the short version of what these cases decided. But, what you should take from these cases is the fact that even the very conservative federal appellate bench is finally taking the Second Amendment seriously – and we’re likely going to continue seeing expansion of the Second Amendment over the next several years in the courts.

I never do this . . . but

2011-07-08T13:59:00.000-07:00

I use this blog almost strictly for comments on legal issues pertaining to firearms, weapons, and self defense issues . . . but . . . there are always exceptions. This is a joke I received today via email -- that just has to be shared -- and is certainly firearms related. So, here goes:

An old prospector shuffled into the town of El Indio, Texas leading an old tired mule. The old man headed straight for the only saloon in town, to clear his parched throat. He walked up to the saloon and tied his old mule to the hitch rail.

As he stood there, brushing some of the dust from his face and clothes, a young gunslinger stepped out of the saloon with a gun in one hand and a bottle of whiskey in the other.
The young gunslinger looked at the old man and laughed, saying, "Hey old man, have you ever danced?"

The old man looked up at the gunslinger and said, "No, I never did dance ... never really wanted to."

A crowd had gathered as the gunslinger grinned and said, "Well, you old fool, you're gonna dance now," and started shooting at the old man's feet.

The old prospector, not wanting to get a toe blown off, started hopping around like a flea on a hot skillet.

Everybody was laughing, fit to be tied. When his last bullet had been fired, the young gunslinger, still laughing, holstered his gun and turned around to go back into the saloon.

The old man turned to his pack mule, pulled out a double-barreled shotgun, and cocked both hammers. The loud clicks carried clearly through the desert air.

The crowd stopped laughing immediately. The young gunslinger heard the sounds too, and he turned around very slowly.The silence was almost deafening.

The crowd watched as the young gunman stared at the old timer and the large gaping holes of those twin 10 gauge barrels. The barrels of the shotgun never wavered in the old man's hands, as he quietly said, "Son, have you ever kissed a mule's ass?"

The gunslinger swallowed hard and said:
"No sir ... but... I've always wanted to."

There are a few lessons for us all here:
Never be arrogant.
Don't waste ammunition.
Whiskey makes you think you're smarter than you are.
Always, always make sure you know who has the power.
Don't mess with old folks, they didn't get old by being stupid

The New 2011 Florida Pro-Gun Laws summarized

2011-06-18T07:00:00.000-07:00

         Florida’s governor, Rick Scott, on Friday, June 17, 2011, signed the last of the three pro-firearm bills passed by the Legislature in 2011. These new laws vary, but understanding them are of critical importance to the entire firearms community. Here’s the short, but concise explanation:

SB 234: This modifies Florida Statute 790.053 (prohibitions on open carry) to allow a CWP holder to "briefly and openly display" their firearm to another person(s) so long as it is not done in an angry or threatening manner – unless in necessary self defense. The bill started as an attempt to allow total "open carry" of firearms by all CWP holders, but the majority of Floridians both within and outside the firearms community – weren’t in favor of that. Likewise, an alleged purpose of the revision was to protect CWP holders from unintentional and inadvertent exposure of their firearm. However, that was already protected under case law (ie: "lack of scienter").

      However, this new law goes far beyond inadvertent disclosure – and allows a brief -- but intentional exposure. Important in the wording was the obvious elimination of the two "trouble words" found in Florida Statute 790.10 (Improper Exhibition), by eliminating the words "rude" and "careless" from the new subsection in 790.053. Important things to remember in this revision – it only applies to firearms. Thus, the horribly worded "improper exhibition" law (790.10) may still cause problems with other weapons. A different section of this new law repealed Florida Statute 790.28 – so that it is now legal to purchase a rifle or shotgun in a non-contiguous state pursuant to federal law.

HB155: This law provides a certain amount of "medical privacy" to prevent medical and emergency personnel from inquiring about firearms ownership unless they have a "good faith" belief it is necessary in treatment, and also prevents an insurance company from raising rates or denying coverage because of an insured’s ownership of firearms or ammunition.

HB45: This law revised Florida Statute 790.33 (ie: the "preemption" statute), big time, however, the effective date is October 1, 2011 -- so there are a few months to go before it takes effect:

       The background was that the Legislature was faced with a myriad of complaints about local governments and administrative agencies writing ordinances and rules that restricted firearms and ammunition use and possession – and substantially interfered and conflicted with the Legislature’s sole power to make laws concerning this area. So, while the previous version did hold that all ordinances dealing with firearms or ammunition were void and unlawful, the revision extended this to all administrative agencies and all rules and regulations of any type, including state agencies with the exception of regulations by the FFWCC affecting the taking of wildlife, and any ranges it manages; and also allowing governments to set regulations for employees while on duty. Moreover, another big change is that any citizen or organization that is affected by such an allegedly unlawful rule, regulation, or ordinance may sue in a court of law for injunctive and declaratory relief and/or damages – and if they win – not only do they get the ordinance or rule tossed out – they also get their court costs, attorney fees, and legal interest. If they lose – it appears the statute will likely bar attorney fees for the defendant unless the suit was utterly frivolous! Major stuff!

      Again -- this statute only applies to firearms and ammunition -- not other weapons. However, local governments are still restricted from passing laws that conflict with Florida Statutes -- although those other local laws will be presumed constitutional unless overturned in a court of law.

copyright 2011 by jon gutmacher [Florida gun law -- Federal gun law]

Corrections and stuff

2011-06-13T06:27:00.000-07:00

Just a couple of things on the book:

Page 147 -- "armor piercing" -- There was a mistake as there's no comma between beryllium and copper -- so only "beryllium copper" is armor piercing -- not all types of (softer) copper. Not sure how that comma got in there, but sorry about that.

790.053 & 790.01 -- if your "under 18" kid needs to carry a self defense pepper spray -- there is no law in Florida that normally prohibits it except around schools, school functions, and other prohibited places. Whether it's a good idea or not is something I won't comment on. Depends on the maturity of the kid. Whether most police officers know this is OK -- I kinda doubt it.

jhg [Florida gun law - Federal gun law]

My new fantasy poetry website -- totally unique!

2011-06-03T19:24:00.000-07:00

For anyone with an interest -- I started a fantasy poetry website for poems I've written. Most of these are pure fantasy stories, and not what you'd expect to see in a poem. Warriors, battles -- and also many fairy tale type stories in poem form. So, yeah . . . I have other interests besides firearms. And no -- it's not "sissy" type stuff. Who woulda guessed? Plus, each has a background image from a famous fantasy artist that fits the mood of the poem. Take a look. I think you'll be surprised: www.fantasypoetrybyjongutmacher.com

Interesting new Florida gun -- self defense case

2011-05-15T07:30:00.000-07:00

There's an interesting case that just came out of the Fifth District called Montijo v. State, 36 Fla L Weekdly D796 (Fla. 5DCA 2011). The defendant was convicted of manslaughter when he stabbed a much larger man who was about to attack him.   Since his defense depended upon the jury believing he had a reasonable belief that a forcible felony was about to be committed, the appellate court held that the trial judge made a major error in instructing the jury that the defendant had the burden of proving such actions of the decedent, and further held that all the defendant need do is raise a question in the jury's mind that his actions "might" constitute self defense -- thus leaving it to the State to prove it wasn't -- beyond a reasonable doubt.

Of course, this is more a lesson for trial lawyers than most citizens -- however, the warnings in the case still furnish a good lesson:

First -- the defendant had the opportunity to avoid the entire event, but chose to leave the safety of a restaurant into the parking lot where he knew the decedent was looking for him.   Rather than wait for the police, who had been called -- he took matters into his own hands.   Not usually a great idea.

Second -- the defense was tenuous. This is the type of case that can easily be won or lost. Since we're talking about a very long mandatory sentence, and the fact that this guy will face a retrial where he may still lose -- again, the lesson is to avoid a confrontation if you can.

Third -- and this is my pure opinion from reading the case -- I think the jury would have convicted him even without the incorrect instruction. Thus, he got real lucky that there was a serious mistake in the trial court.

So -- what's the moral?

Well -- we already discussed that!

If there's any reasonable way to avoid a conflict-- avoid it!   Otherwise, you could wind up like this defendant. Not a great place to be -- regardless of whether he can win or lose.

jhg [Florida gun law -- Federal gun law]

I am constantly concerned

2011-05-11T08:41:00.000-07:00

As you probably know . . . I get lots of emails during the week . . . all of which I try to answer, but few of which wind up here. Most are basic, and I try to reserve for publication only the ones that will benefit everyone. However, some are so basic -- that I usually just tell them to "buy the book", because their question reveals that their level of knowledge is obviously so limited -- that they are just a walking target for a really serious legal mistake.

Here's an example.   Got an email today from someone who wanted to know if he could shoot one of several roommates if there was a dispute because he didn't have a CWP.

Wow!   Does that worry you?

My answer was straight forward -- It depends on the circumstances, but obviously there's no "retreat rule".

The response was:   "What do you mean by the retreat rule?"

Well . . . at that point I realized that any further answer would not be doing this guy much good -- and that he really needed to read the book before anything. I responded to him in that way -- and hope he took the hint. However, the unfortunate truth is -- most people out there who haven't read the book -- don't have a clue how the law actually works -- and what you can or can't do legally.   When you figure a mistake usually brings in a charge with a mandatory minimum jail sentence -- it kind of puts things in perspective.    Having a firearm is dangerous unless you know the law.

Sorry if this sounds like a plug for the book. It really isn't. It's a pure warning of what's out there, and the danger of ignorance.

About the 7th edition to the Florida Firearms book

2011-01-17T08:12:00.000-08:00

I've been asked by a lot of people whether they need to buy the new 7th edition of my book: FLORIDA FIREARMS -- Law, Use & Ownership, if they already have the Sixth edition.   My advise is "yes" -- because the 7th edition is such a radical revision of all prior versions -- that even if you have the 2010 printing of the Sixth edition - you now should upgrade. Here's why:

As you may know, the Sixth edition went through six separate printings beginning in 2005, and ending with a final printing on January 2010. Each printing was materially different than the earlier one, and the printing in 2009 should have been a new 7th edition because the changes and additions were so radical from anything earlier. Thus, any printing prior to the 2009 edition is so substantially out of date that it cannot be relied upon.   (printing dates are found on the Warnings & Disclaimer page at the front of the book).

Now, the 2010 printing of the Sixth edition is somewhat current with the free update on my webpage -- but it's fifty pages shorter than the new 7th edition, and lacks the new additional chapter on advanced legal issues in self defense, and doesn't have the 2011 Florida gun laws. Plus, the 7th edition is a total revision of the older book -- from top to bottom. It's not so much that the law changed between books -- but the explanations have been totally revised and expanded, and lots of new material was added from email questions I've received in the past year, and cases I've handled. Plus, the 7th edition was reprinted in July 2011, with the updated laws for 2011 explained.

If you're not familiar with the book, and are trying to justify the $31.50 cost -- let me assure you that the price is as low as we could get it -- and still make a reasonable profit for ourselves and our dealers. It's designed to keep you out of jail -- and out of trouble. When you figure a minimal attorney fee on a misdemeanor charge is probably gonna run you at least $2,500.00 -- and an aggravated assault closer to $15,000.00 or more -- you begin to realize that the book is worth whatever you have to pay to get it.

Too many people think they know the Florida gun laws, and self defense laws -- but really have no clue -- until they read the book. Then, the typical reaction is what follows -- from an actual email I received:

"Subject: FFA WEBSITE CONTACT: Compliment

Comments: I just completed my cwp class. I was reluctant to buy your book at the class. (but I did anyway). I read it in one day. I'm so glad I bought it. I think all classes should include it in their fee even if the class is more. I really think it should be mandatory.   Thank-you so much for taking the time to publish the seventh edition."

If you think that's an exageration -- ask someone who's read the book what they think. I'm willing to bet -- they'll say the same thing. Until you've read it, you have no idea how important it is -- and how much trouble you could have gotten into if you hadn't.

Feel free to email any questions to me from the website email link:
http://www.floridafirearmslaw.com/

thanks
jon gutmacher [Florida gun law -- Federal gun law]

Open carry of a firearm on private property, with permission -- legal?

2011-01-05T06:29:00.000-08:00

Well . . . every month I get over a hundred emails about Florida gun laws (and federal), and try to answer all of them. Few are unique enough to hit the blog -- but this was one that did. Here's the interesting question, and answer:

Question:
Is it legal for me to open carry a firearm on private property, as long as I have the permission of the owner/proprietor?

Answer:
As ridiculous as this answer is going to sound -- I believe it is unlawful to open carry a firearm on someone else's property, even with the permission of a private property owner, unless you fall into the exceptions of 790.25. (ie: lawful fishing, hunting, camping, shooting, etc.). There is no exception in 790.053 (ie: open carry) for carry with permission. Thus, only 790.25, and the lawful use of self defense would be exceptions.

On the other hand, I find it hard to believe an arrest would result in such a situation, and seriously doubt anyone would be prosecuted under these circumstances except in the most extreme case -- and I also believe there are serious constitutional issues as to the validity of any such prosecution. As to a reason why the Legislature would act in such a fashion -- my belief is it was pure oversight, and totally unintentional.

Florida gun laws are far from perfect -- and this is one example. Of course, if you have a CWP -- you could certainly have it on the property, and even briefly expose it under the new 2011 CWP law.

Hope that helps

jhg [Florida gun law, federal gun law]

Product Warning: Walther PPK & PPK/S

2010-11-17T06:51:00.000-08:00

Smith & Wesson has issued a recall on all Walther PPK and PPK/S pistols manufactured between March 21, 2002 and February 3, 2009. The pistol may allow a round to fire WITHOUT THE TRIGGER BEING PULLED!!!!! -------------------------------------------
If you have such a firearm -- unload it -- do not use it -- and contact Smith & Wesson immediately -- at the following number: 1-800-331-0852 !!!!!

The "real" self defense issues in Florida

2010-11-12T15:20:00.000-08:00

I received a phone call from a gentleman today about a possible aggravated assault charge. It seems he was minding his own business when confronted by three other "gentlemen". They got into a deliberate argument with him, and then one grabbed a brick and threatened to hit him with it. As most of you know -- this constitutes an aggravated assault, and a "forcible felony". The first gentleman, who has a CWP, drew his weapon -- and warned the man to drop the brick -- and move back. He claims he only drew the weapon, and did not point it.   The distance was close -- and quite frankly, as he described the situation -- he would have been justified shooting the other person. However, he did not. And the other three withdrew.

The problem was -- they called the police and claimed he assaulted them with his firearm!

The police responded -- and although he had a witness -- it was three against two -- so the police arrested both him and the other man -- each for aggravated assault. The police were busy -- so they refused to check for other witnesses. There were actually three others -- all who allegedly would support the version of the CWP holder.   However, since he had a firearm -- he is facing a mandatory minimum if the State files charges.

He called me as a referral -- and since it involved some travel -- I gave him the bad news: I'd have to charge twenty-five grand plus expenses.   I suggested he could probably find someone in his area for less money, and he might want to do that. Still -- I highly recommended he retain someone immediately - even though charges were not yet decided on.

How did this happen????

Well . . . the sad news is that this is a TYPICAL scenario!   The bad guys aren't gonna admit they're guilty of a felony!   They're pure scum and low life!   They're gonna blame it on you!   Most of the time the cops don't care -- they're too busy to sort it out -- and will arrest everyone.   And now -- you've gotta spend twenty grand or more to survive???

It sucks royally!

This is the problem with mandatory minimum sentences.   This is the problem where State Attorneys routinely REFUSE to consider a polygraph test!   Sooner or later -- we citizens are going to have to protect ourselves from these draconian laws -- and take matters into our own hands by proposing our own legislation. Your legislators just don't seem to want to do it -- and the NRA is also a prime backer of mandatory sentences. It's good press -- but terrible reality. We need to do away with mandatory minimum sentences in aggravated assault and aggravated battery cases unless a person has a prior felony. We need a law that REQUIRES the State Attorney and juries to consider polygraph results from a list of certified polygraph operators who pass tests that qualify themselves -- or from a State board of polygraph experts who will conduct polygraphs for the State or defense!

That's 30+ years of experience taking -- as both a trial lawyer, prosecutor, defense attorney, police advisor -- and certified instructor firearms instructor.   Maybe someone should listen?

jhg [Florida gun law -- Federal gun law]

Safe Storage of Firearms in Florida -- statute conflicts

2010-11-09T06:51:00.000-08:00

Well . . . busy week for email questions -- and keeping with this week's tradition -- this next email on Florida gun laws -- is also a good one. It's on firearms storage -- and here it is:

Question: I have a question regarding firearm storage. Section 790.174 is pretty clear, and describes the requirements for safe gun storage. However, when I buy a gun, I have to sign a form that says:

Senate Bill 18-B: “IT IS UNLAWFUL, AND PUNISHABLE BY IMPRISONMENT AND FINE, FOR ANY ADULT TO STORE OR LEAVE A FIREARM IN ANY PLACE WITHIN THE REACH OR EASY ACCESS OF A MINOR UNDER 18 YEARS OF AGE OR TO KNOWINGLY SELL OR OTHERWISE TRANSFER OWNERSHIP OR POSSESSION OF A FIREARM TO A MINOR OR A PERSON OF UNSOUND MIND.”

          This is apparently mandated by 790.175. Now, 790.175 and 790.174 seem to state very different things. For example, minors are defined as under the age of 16 in 790.174, but under 18 in 790.175. 790.174 also only refers to loaded guns, while 790.175 does not specify whether loaded or unloaded. I realize that 790.175 only says that notice must be given upon transfer or sale, but the notice that has to be given seems to conflict with the laws set forth in 790.174. Or do I misinterpret these sections?

ANSWER:   You're sharper than most. 790.175 only applies to the warning -- but as you read -- is not the law actually applied. 790.174 states the "safe storage" requirements -- and if unloaded -- it's not a crime, even if the kids get to it easily -- although it still could be a civil liability problem. Plus, as you cleverly noticed -- 790.14 only prohibits to minors "under 16" -- whereas 790.175 is "under 18". I have a feeling that some clever legislator did the draft this way to sneak it through more liberal legislators when it was passed in 1989.   Whatever -- it's a loophole that I applaud.   I want my kids to be able to assist in a home invasion, and the statement in 790.175 is an unnecessary attempt to curtail my family's right of self defense.   These laws are only "after the fact" openings to prosecution. People will do whatever they want no matter what this law says.

       Last -- but not least -- neither section requires you to sign anything. That seems to be a requirement your dealer added -- either because he totally misunderstood the law, or thought he needed to do that to protect himself.

Thanks for the great question.   Rare insight.

jhg [Florida gun law -- Federal gun law]

CWP carry in liquor store or 7-11 type store

2010-11-06T14:28:00.000-07:00

Another email question that deserves an explanation:

Question: Since the 2009 Edition came out, has there been an update to a Florida firearms law regarding carrying concealed into places where alcohol is being sold, where is is not being served for consumption? An associate, former police officer, mentioned that he thought that convenient stores were also included in the prohibited places for CCW carriers? Again, has there been a change in the law this year?

Answer: 790.06(12) remains unchanged -- the prohibition on concealed carry per your Concealed Carry Permit (CWP) is only for establishments where alcohol is also consumed on the premises -- not just sold.

Hope that helps.

Another firearm "printing" question

2010-11-03T07:53:00.000-07:00

This seems to be the year for questions about "printing" of firearms. And, as you've guessed . . . yet another such exciting question:

Question: A casual acquaintance has tried to insist that if one is "printing", then the firearm is not considered concealed. I find that somewhat preposterous, and I didn't see anything in your book or the Florida statutes that would clarify this. Who is right?

Answer: I am right -- you are mostly right -- he is not totally wrong, but far from correct. My response is that momentary printing is not a crime, and is not "open carry". Carry in Florida is either "open carry" per 790.053, or "concealed carry" per 790.01. If you can think of a third possibility -- email me quick, cause I gotta hear that one. Anyway -- to be "open carry" it must be obvious to the casual observer as a firearm (ie: anyone would realize immediately it's a firearm)-- and you (the person carrying it) must know it is so displayed. It can't be accidental -- that would be a "lack of scienter". The 7th edition goes into this, but that comes out in December 2010. On the other hand, I guess, if you're wearing a see-thru shirt -- my answer would be different. If that's your third possibility -- don't email. Just take a couple of Tylenol -- cause you've been thinking way too much.

Hope that helps.

Momentary "printing" of a firearm in Florida

2010-11-01T08:43:00.000-07:00

I've received quite a few emails lately about "momentary printing". Here's one of em -- and my response:

Comment: I spoke with a gun shop clerk and he told me that it's "Brandishing" if my gun grip bulges my shirt when I bend over even though the gun is still completely covered by clothing. This has got me really concerned because I do not wish to get in trouble. Thanks

Answer:
Tell him to read my book. No way is that the law! Plus, "brandishing" is a common law crime that comes closest to "improper exhibition" in Florida, and momentary printing isn't even close to the definitions in either one. The 7th edition of the book goes into this. The new edition comes out in December.

Problems with Self Defense in Florida -- Tapanes v. State

2010-11-01T08:09:00.000-07:00

I often warn people about the dangers of feeling "too protected" by the new Stand Your Ground laws. The law isn't as good as it seems, things can still go very wrong, and the use of a firearm normally means that you're facing a very serious mandatory penalty unless the facts are crystal clear -- and there is no doubt that you were within your rights in using a firearm and/or deadly force. The case of Tapanes v. State, 35 Fla. L. Weekly D2031 (Fla. 4DCA 2010) is just such an example.

In this case the defendant was a homeowner. He and a neighbor got in a verbal dispute, there was some pushing involved, and the defendant ordered the neighbor off his property. The police were not called. The neighbor left, but came back soon thereafter by driving his car into the defendant's driveway, parking, getting out and banging on the front door allegedly threatening to "kill" the defendant. The defendant retrieved his firearm, did not call the police, and opened the door to confront the neighbor. The defendant alleged the neighbor hit is hand with something metal, and the defendant then pointed his firearm at the neighbor. He then alleged the neighbor moved his elbow up, and said "you are dead". At this point -- he shot the neighbor. He testified that he thought the neighbor had a gun. Unfortunately, he also shot the neighbor again -- while he was lying on the ground. And more unfortunately, the neighbor's family had all followed him to the defendant's home -- and were very unpleased witnesses against him. The defendant was charged with manslaughter.

Now -- I know you've immediately figured out the first problem -- shooting the guy again, on the ground was probably not a really great idea -- especially with the neighbor's family watching it. Even if he acted properly before -- this could furnish a separate basis for manslaughter. We can argue the finer points of this -- but face it -- it's a problem.

Another problem was -- they never found a gun on the dead neighbor. Our defendant surmised that the neighbor's family somehow took it before police arrived -- but -- that is not something that will be an easy sell to a jury.

Another problem is the total lack of calling 911 before going macho at the front door! Had the defendant called 911 -- he would have definitely established himself as the "victim". Very important. But -- instead he took it on himself to have a direct confrontation with a nut job. Whether or not legal - not smart!

Plus -- do we really have a "Stand Your Ground" home invasion situation -- or -- just two angry neighbors?

The prosecution took the later position -- and the jury agreed. However, a lucky fluke during the case resulted in a reversal for a new trial.

I'm not gonna give you my full legal analysis on this one. I think that what I've pointed out is enough for now. Because, as the facts are in controversy -- the protections of the new law are very slim. Being macho -- is not smart. Handling things yourself is something to be avoided unless it can't be avoided.

The problem is that too many people think they know the law -- but have no idea. Read the book! A new one is coming out December 1.

Only a firearm can protect you

2010-07-18T06:39:00.000-07:00

I write briefly about a new case to emphasize a point I often make:

Whether you like guns or not -- whether you want guns or not -- whether you ever intend to use a gun or not -- if you don't have one when you really need one -- you, and perhaps your entire family will pay the price -- probably with your lives. So, the question comes down to:

Are you willing to sacrifice not only yourself, but also the beloved members of your family -- in order to prove the point on how much you personally abhor violence -- and thereby unwittingly help some low life scumbag successfully invade your home, steal your possessions, rape your children, torture your family -- and then, simply escape with impunity after leaving you, and those you love most cherished and dear -- dead or dying on the floor in growing pools of their own blood?

Well . . . Schoenwetter v. State, 35 Florida L. Weekly 409 (Fla. 2010), certainly illustrates the point. It also illustrates the importance of responding to a serious threat with a firearm in hand, rather than investigating without a means of substantial protection -- ie: a firearm.

In Schoenwetter case, Randy Schoenwetter was a family friend of the Friskey family. He had gone to karate school with their children. Slept over the home on occasion. And was good friends with their son. However, Schoenwetter wasn't all what he seemed. And at 3:00 a.m. on an early August morning, Schoenwetter decided it might be fun to rape one of the Friskey family daughters, ages 16 and 10, so he rode his bike over to the Friskey home. Cut open the screen enclosure to gain entrance to the patio, and then slid thru a narrow opening in a sliding glass door. Once inside, he went to the kitchen, and armed himself with a large kitchen knife. (something that happens very often in break-ins) He then proceeded to the room of the 16 year old, and tried to open her door -- it was locked. He then went to the room of the 10 year old instead -- as an alternate rape victim. However, when he entered the room and grabbed her, she screamed and continued to scream. At that point, her mother and father awoke. Both rushed into her room, unarmed, to find out what the problem was. When they saw Schoenwetter with their daughter, they immediately tried to grab him off their daughter, and managed to tackle him to the floor. In the process they were both stabbed, and Schoenwetter broke free. Instead of running from the home, he knew that the daughter had recognized him, and so he returned to her bed, and stabbed her in the chest repeatedly so she couldn't identify him (remember -- it's dark inside the home). The father, then tackled him again. Schoenwetter stabbed some more. It was a heroic try by the parents -- but they were unarmed. The kitchen knife was long and sharp. It was dark. And Schoenwetter was young and strong. You figure it.

Well . . . Schoenwetter finally flees the home. Dad is dead in a pool of blood, as is the ten year old daughter. Mom is barely alive, and somehow survives -- somehow. Even the doctors don't know how she made it -- they had over twenty full transfusions of blood trying to save her. The daughter who had locked her door -- survived. She was the one who called 911. The son -- was not home. He had enlisted in the Air Force only a few months before -- otherwise he'd be dead, too.

The moral: He who is armed survives. He who is unarmed perishes. Or, to put it another way: The only way the Friskey family could have survived was with a firearm. Nothing else would have been sufficient to defend themselves against this type of attack.

Of course . . . there are other things they could or should have done that might have stopped the home invasion before it began. Not leaving a gap in the sliding door. Having a large dog from a breed that instinctively protects and barks -- might have frightened Schoenwetter away, or given the family time to react. An alarm system. But in the end -- the one thing -- the only thing -- the very thing -- that was absolutely essential -- was missing. A firearm. For a firearm is nothing more or less than a last clear chance of survival in a life-or-death situation.

If that's all you ever use it for -- then whatever you paid for it -- it was worth it.

So, for any of you who may be shy about having a firearm. Who are concerned about how dangerous it can be. Who do not want to take another's life because life is sacred. I say to you:

If life is sacred, if children are dear, if your spouse is truly the love of your life, if your possessions are worth saving -- then you really don't have a choice. Buy it. Learn to use it. Then lock it in a digital safe with a back-up key close at hand-- loaded -- where you can get to it very, very quickly -- and pray to God that you never have to use it. But if that day comes remember: It's there for a purpose -- one purpose -- your survival, and the survival of your family.

Use it -- that's what it's there for. That's all that it's there for. And, when you look in the eyes of your family the next day, all alive, all well, all realizing how close it really came to the end of everything you know and hold dear -- that's the moment of truth when you'll know . . . beyond any reasonable doubt -- that you did the right thing.

McDonald v City of Chicago -- Summary

2010-06-29T08:13:00.001-07:00

Otis McDONALD, et al., Petitioners v. CITY OF CHICAGO, ILLINOIS, et al.
United States Supreme Court, Case No. 08-1521.
Argued March 2, 2010. – Decided June 28, 2010.

A summary of highlites of the decision by Jon H. Gutmacher, Esq.*

Reviewer's Summary:
On June 28, 2010, the United States Supreme Court decided the case of McDonald v. City of Chicago. The case involved a challenge to what amounted to a total ban on handguns in the homes of ordinary citizens by the City of Chicago, and a challenge to that ban by a Chicago resident who believed he had a Constitutional Right, under the Second Amendment, to keep a handgun in his home to protect himself from attack in the high crime neighborhood in which he lived. Having lost his challenge in both the federal trial court, and the federal appellate court, the United States Supreme Court reversed the lower court decisions, and held that the Second Amendment applied equally to the States under the Fourteenth Amendment of the United States Constitution "Due Process" clause, which provides that no state may deprive "any person of life, liberty, or property without due process of law", and that the Chicago ban was therefore unconstitutional. Thus, the Court has followed a series of cases that began in the late 1800's, and gained momentum in the mid 1900's that has gradually extended the protections of the Bill of Rights to the States as well as the federal government. In so doing, the Supreme Court held that the "Right to Keep and Bear Arms" included the right of self defense, a right that was "fundamental" to our society, and that as handguns were the primary means of protection of the home in modern times – that a ban on handguns was unconstitutional.

Key to quoted sections:
The sections quoted are those which this reviewer feels contain the most important parts of the Majority Opinion, and those which I feel are of even more particular interest or importance are represented by being in "bold", and/or being placed in a larger font.

Selected highlites from the Majority Opinion of the Court:

"We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States.

"Chicago Police Department statistics, we are told, reveal that the City's handgun murder rate has actually increased since the ban was enacted FN1 and that Chicago residents now face one of the highest murder rates in the country and rates of other violent crimes that exceed the average in comparable cities.FN2

"The constitutional Amendments adopted in the aftermath of the Civil War fundamentally altered our country's federal system. The provision at issue in this case, § 1 of the Fourteenth Amendment, provides, among other things, that a State may not abridge the privileges or immunities of citizens of the United States or deprive any person of life, liberty, or property, without due process of law.

"Cruikshank, 92 U.S., at 553, 559. The Court wrote that the right of bearing arms for a lawful purpose is not a right granted by the Constitution and is not in any manner dependent upon that instrument for its existence. Id., at 553. The second amendment, the Court continued, declares that it shall not be infringed; but this ... means no more than that it shall not be infringed by Congress. Ibid. Our later decisions in Presser v. Illinois, 116 U.S. 252, 265, 6 S.Ct. 580, 29 L.Ed. 615 (1886), and Miller v. Texas, 153 U.S. 535, 538, 14 S.Ct. 874, 38 L.Ed. 812 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

"None of those cases engage[d] in the sort of Fourteenth Amendment inquiry required by our later cases. Ibid. As explained more fully below, Cruikshank, Presser, and Miller all preceded the era in which the Court began the process of selective incorporation under the Due Process Clause, and we have never previously addressed the question whether the right to keep and bear arms applies to the States under that theory.

"Nonetheless, over 60 years later the Court held that the right of peaceful assembly was a fundamental righ[t] ... safeguarded by the due process clause of the Fourteenth Amendment. De Jonge v. Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 81 L.Ed. 278 (1937). We follow the same path here and thus consider whether the right to keep and bear arms applies to the States under the Due Process Clause

"In the late 19th century, the Court began to consider whether the Due Process Clause prohibits the States from infringing rights set out in the Bill of Rights. See Hurtado v. California, 110 U.S. 516 (1884) (due process does not require grand jury indictment); Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897) (due process prohibits States from taking of private property for public use without just compensation). Five features of the approach taken during the ensuing era should be noted.

"A number of scholars have found support for the total incorporation of the Bill of Rights. See Curtis, supra, at 57-130; Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 Yale L.J. 57, 61 (1993); see also Amar, Bill of Rights 181-230. We take no position with respect to this academic debate.

"The Court made it clear that the governing standard is not whether any civilized system [can] be imagined that would not accord the particular protection. Duncan, 391 U.S., at 149, n. 14. Instead, the Court inquired whether a particular Bill of Rights guarantee is fundamental to our scheme of ordered liberty and system of justice.

"Only a handful of the Bill of Rights protections remain unincorporated.FN1FN12. With respect to the First Amendment, see Everson v. Board of Ed. of Ewing, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947) (Establishment Clause); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940) (Free Exercise Clause); De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278 (1937) (freedom of assembly); Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925) (free speech); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931) (freedom of the press

"In answering that question, as just explained, we must decide whether the right to keep and bear arms is fundamental to our scheme of ordered liberty

"Our decision in Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present day,FN15 and in Heller, we held that individual self-defense is the central component of the Second Amendment right. 554 U.S., at ---- (slip op., at 26); see also id., at ---- (slip op., at 56) (stating that the inherent right of self-defense has been central to the Second Amendment right ). Explaining that the need for defense of self, family, and property is most acute in the home, ibid., we found that this right applies to handguns because they are the most preferred firearm in the nation to keep and use for protection of one's home and family, id., at ---- (slip op., at 57) (some internal quotation marks omitted); see also id., at ---- (slip op., at 56) (noting that handguns are overwhelmingly chosen by American society for [the] lawful purpose of self-defense); id., at ---- (slip op., at 57) ( [T]he American people have considered the handgun to be the quintessential self-defense weapon ). Thus, we concluded, citizens must be permitted to use [handguns] for the core lawful purpose of self-defense. Id., at ---- (slip op., at 58).

Heller makes it clear that this right is deeply rooted in this Nation's history and tradition. Glucksberg, supra, at 721 (internal quotation marks omitted). Heller explored the right's origins, noting that the 1689 English Bill of Rights explicitly protected a right to keep arms for self-defense, 554 U.S., at --------- (slip op., at 19-20), and that by 1765, Blackstone was able to assert that the right to keep and bear arms was one of the fundamental rights of Englishmen,

"FN16. For example, an article in the Boston Evening Post stated: For it is certainly beyond human art and sophistry, to prove the British subjects, to whom the privilege of possessing arms is expressly recognized by the Bill of Rights, and, who live in a province where the law requires them to be equip'd with arms, & c. are guilty of an illegal act, in calling upon one another to be provided with them, as the law directs. Boston Evening Post, Feb. 6, 1769,

"Thus, Antifederalists and Federalists alike agreed that the right to bear arms was fundamental to the newly formed system of government. See Levy 143-149; J. Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right 155-164 (1994). But those who were fearful that the new Federal Government would infringe traditional rights such as the right to keep and bear arms insisted on the adoption of the Bill of Rights as a condition for ratification of the Constitution

"The unavoidable conclusion is that the Civil Rights Act, like the Freedmen's Bureau Act, aimed to protect the constitutional right to bear arms and not simply to prohibit discrimination. See also Amar, Bill of Rights 264-265 (noting that one of the core purposes of the Civil Rights Act of 1866 and of the Fourteenth Amendment was to redress the grievances of freedmen who had been stripped of their arms and to affirm the full and equal right of every citizen to self-defense ).

"Congress, however, ultimately deemed these legislative remedies insufficient. Southern resistance, Presidential vetoes, and this Court's pre-Civil-War precedent persuaded Congress that a constitutional amendment was necessary to provide full protection for the rights of blacks.FN24 Today, it is generally accepted that the Fourteenth Amendment was understood to provide a constitutional basis for protecting the rights set out in the Civil Rights Act of 1866.
In debating the Fourteenth Amendment, the 39th Congress referred to the right to keep and bear arms as a fundamental right deserving of protection.

Senator Samuel Pomeroy described three indispensable safeguards of liberty under our form of Government. 39th Cong. Globe 1182. One of these, he said, was the right to keep and bear arms:
Every man ... should have the right to bear arms for the defense of himself and family and his homestead. And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretchedness will forever remain complete.

"The right to keep and bear arms, however, is not the only constitutional right that has controversial public safety implications. All of the constitutional provisions that impose restrictions on law enforcement and on the prosecution of crimes fall into the same category

"As noted by the 38 States that have appeared in this case as amici supporting petitioners, [s]tate and local experimentation with reasonable firearms regulations will continue under the Second Amendment. Brief

"23-31. In Heller, however, we expressly rejected the argument that the scope of the Second Amendment right should be determined by judicial interest balancing

"It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. 554 U.S., at ---- (slip op., at 54). We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as prohibitions on the possession of firearms by felons and the mentally ill, laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Id., at --------- (slip op., at 54-55). We repeat those assurances here. Despite municipal respondents' doomsday proclamations, incorporation does not imperil every law regulating firearms.

"On the contrary, we stressed that the right was also valued because the possession of firearms was thought to be essential for self-defense. As we put it, self-defense was the central component of the right itself. Ibid.

"First, we have never held that a provision of the Bill of Rights applies to the States only if there is a popular consensus that the right is fundamental, and we see no basis for such a rule. But in this case, as it turns out, there is evidence of such a consensus. An amicus brief submitted by 58 Members of the Senate and 251 Members of the House of Representatives urges us to hold that the right to keep and bear arms is fundamental. See Brief for Senator Kay Bailey Hutchison et al. as Amici Curiae 4. Another brief submitted by 38 States takes the same position

"The legislators noted that the number of Chicago homicide victims during the current year equaled the number of American soldiers killed during that same period in Afghanistan and Iraq and that 80% of the Chicago victims were black.FN32

"a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States. See Duncan, 391 U.S., at 149, and n. 14. We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings.

___________________________________
* Mr. Gutmacher is a practicing criminal trial attorney in the State of Florida for over thirty years, a former felony prosecutor, and police legal advisor, the author of the leading treatise on Florida and Federal firearm and weapon laws "Florida Firearms – Law, Use & Ownership" (with over 140,000 copies sold), is an NRA Certified Firearms Instructor, a referral attorney for the NRA and GOA, has appeared on Nightline and other national and local television programs as a featured guest, and has written professionally in the firearms and self defense field for over fifteen years.

Possession of Firearm by Convicted Felon

2010-06-12T07:10:00.000-07:00

I've been getting quite a few inquiries about people who live with convicted felons who want to keep their own firearm. The book does explain that the legal problem is not with this "legal"other person -- but revolves around the problem the convicted felon could have with a concept called "constructive possession". Constructive possession, in its most simplified form, is a legal concept where a person can be charged with illegal possession of something because they have knowledge of its presence, and the ability to exercise dominion over it. Thus, placing a firearm in a closed drawer with the knowledge of the felon as to its location is generally enough to allow a finding of "constructive possession" since all the convicted felon need do is open the drawer if he or she wanted to obtain possession. But -- what if it's in a safe where the felon doesn't have the combination?

The answer is a question of fact, and that means it can be a jury issue. Generally, state court prosecutions would require some evidence that the felon had actual access before prosecuting. However, if you are being prosecuted by the feds -- the burden is much easier against you, and prosecutions based purely on proximity are not unusual.

Hope that helps

Clarification on Switchblades

2010-06-12T06:52:00.000-07:00

A recent email I received pointed out an issue that I thought was clarified in the last printing of my book on page 133, but apparently is still confusing some people. To make it very clear -- it is perfectly legal to purchase a switchblade knife in Florida no matter where it was manufactured -- however, it is not legal to transport it across state lines. On the other hand, it is not legal to sell a switchblade knife manufactured outside the State of Florida within Florida - although the prohibition is against the seller -- not the purchaser. This is based on federal law, which has other prohibitions on where a switchblade cannot be carried -- which the book is crystal on.

Hope that helps

Concealed Carry in a Public Library

2010-05-04T11:17:00.000-07:00

I received an email today regarding a sign a citizen saw on his entrance to a public library alleging it was a crime to carry concealed with a CWP in a library. I am familiar with this type of anti-gun B.S. -- because Orange County (where I reside) has such a blatantly illegal regulation. For those interested, my opinion on this is as follows:

Florida is a "preemption state" on firearms carry issues. That means local government cannot lawfully pass ordinances or regulations that make firearms use illegal -- if it not likewise illegal under general Florida law. Carry in a public library with a valid CWP is perfectly legal under Florida law -- and in my opinion, any contrary ordinance or regulation is a blatant violation of the Florida Constitution and our general laws. Moreover, I believe any such regulation or ordinance would be overturned if a lawsuit was brought challenging it, and anyone adversely affected would also likely have a federal civil rights action available to them.

Likewise, the assertion that you can be searched just because you enter a library is also pure B.S.! If anyone asks if they can search you -- tell them no! If they ask if you have a firearm -- quite frankly -- you are under absolutely no legal obligation to tell them unless you are placed under arrest. If you have a choice between a search and staying inside -- leave! A search can only be conducted if there is probable cause to believe you are committing or about to commit a crime. There should be no legal reason to prevent you from leaving. If a police officer says he's gonna search you anyway -- you should make clear that any such search is without your permission -- however, do not otherwise resist. That could cause problems.

That being said -- a law or regulation is normally presumed valid until successfully challenged, and few people have the money to intentionally do that. Therefore, even with the new law on preemption -- it is possible you could be arrested as a "test case" if you pushed the issue. I doubt it would be prosecuted -- but, anything is possible in Florida! The revision to this law in 2011 (begins 10/1/11) will allow damages, attorney fees, and other relief for violations of the preemption law -- and also make challenging violations much easier. I also believe that the wording of the statute means that all laws and regulations in conflict are presumed "unconstitutional". However, this is something that will have to be properly raised and tested in court.
The problem is still -- fronting the money for a challege -- unless you can find an attorney willing to hope for reimbursement if he or she wins the challenge case.
Hope that helps.

Instructive case on "common pocketknives"

2010-02-14T07:24:00.000-08:00

Under Florida law a "common pocketknife" is generally not considered a "weapon" unless it is used as such, or threatened as such. For some reason, if it is not fully closed when found concealed in your possession -- this becomes an issue whether it is a "weapon" or common "implement". I have yet to figure this reasoning out, but that's the law. (well . . . I understand it . . . but just don't agree with it) So -- from a technical standpoint -- under Florida law -- if you're carrying a folding knife concealed, with a blade length less than 4 inches, and the knife is fully closed, and it has no special "combat" features (whatever the hell that means -- thanks to a ridiculous appellate decision) -- it is not a weapon unless threatened as such.

A good example of this is the recent case of Browder v. State, 35 Fla. Law. Weekly D271 (Fla. 2DCA 1/29/10), where the Second District Court of Appeal (my favorite) held that it was reversible error to deny a convicted felon's motion to dismiss a charge of CCW (carrying concealed weapon) where the motion specifically alleged the knife was a "common pocketknife" with a blade "less than four inches", that was "closed" in his pocket. Thus, the case was ordered thrown out -- and justice was obtained. (otherwise a second degree felony for a convicted felon)

However, a word of warning to the wise -- federal law considers a pocketknife a "dangerous weapon" unless it is a folding pocketknife with a blade "less than two and a half inches". 18 USC 930 (g)

How Self Defense isn't Self Defense

2010-01-24T07:38:00.000-08:00

A recent case, Montanez v. State, 35 Fla. L. Weekly D119 (Fla. 2DCA 1/6/10), illustrates how too much adrenalin can really get you in trouble with "self defense". In this case the defendant shot an individual who had just stolen a vehicle. The individual aimed the car at the defendant, and as the car proceeded by him -- the defendant shot the individual thru the window. The car thief died -- and the defendant was prosecuted for second degree murder, shooting into a vehicle, and aggravated assault.

The defense attorney filed a motion to dismiss under the immunity law in Chapter 776 saying the defendant was entitled to use self defense because he felt his life was in danger. The trial judge held an evidentiary hearing, and determined that because the fleeing vehicle had already gone past the defendant, he was "no longer in the zone of uncertainty" -- and the danger had passed. Thus - no immunity! The decision was correctly affirmed by the Second District (although I have some serious problems about the application of certiorai rather than prohibition -- for you lawyers out there).

In essence -- even if you might have a right to use deadly force at one moment -- once the danger to yourself has passed -- even if only by a fraction of a second -- your use of deadly force can have deadly consequences to yourself.

I would note that it does not appear that the issue of whether the defendant had a right to use deadly force in stopping a robbery was ever raised. If it wasn't -- it should have been. On the other hand -- my advise in those situations is usually (but not always) to let the guy flee, rather than take the chance that some prosecutor will decide, in retrospect, that such an action was illegal.

How immune is immunity?

2010-01-09T06:02:00.000-08:00

I've often warned people that the "immunity" granted by the new self defense laws in Chapter 776 of the Florida Statutes is somewhat fragile -- and doesn't really protect you when there are disputed issues of fact. However, almost all cases are going to have disputed issues of fact -- because the "bad guy" is usually going to lie to cover himself from prosecution. Because of that, I will repeat once again: Mandatory Minimum sentences in self defense cases do NOT serve the citizens of Florida - and are a complete injustice. Mandatory minimum sentences, except for repeat offenders, should be prohibited! Here's an example of why:

The recent case of McDaniel v. State, 34 Fla. Law Weekly 2548 (Fla. 2DCA 2009), involved an alleged self defense case where the Defendant claimed that the "victim" had tried to force his way into the home of the Defendant's mother (where the Defendant lived) unlawfully, and he therefore tried to prevent his entry by using a machete. The "victim", on the other hand, claimed he had permission to enter, and the Defendant attacked him without provocation. The Defendant was arrested, prosecuted, went to trial, and was convicted. He had filed a motion to dismiss on immunity grounds that was denied. Whether the jury convicted him for use of excessive force, or because they believed the victim -- is a question for which I don't know. However (and while the case did not involve a mandatory because no firearm was used) -- it illustrates the point: when serious sh_t happens -- someone is gonna lie to cover themself. It could have been the victim -- it could have been the Defendant. But, the result is often that guy or gal who is claiming self defense bears the brunt of arrest and prosecution. This kind of situation happens all the time.

The appellate court held that despite the conviction, the Defendant was entitled to a new hearing on his motion to dismiss because such a motion must be determined on the basis of whether the Defendant was able to establish immunity by a preponderance of the evidence. In this case - it was unclear if the trial judge used that standard. However, the other problem made clear by this case is that the burden of showing you're entitled to immunity rests on you -- rather than the State. In all other immunity claims -- it's the State (not you) that has the burden of showing you're not entitled to immunity! Big switch -- and a major constitutional issue if someone eventually gets that issue to the Florida Supreme Court. But for now -- if you can't prove entitlement -- no immunity! Tough luck! Go to trial -- face a mandatory sentence -- or take a plea bargain.

Not a great place to be if you're innocent -- and the other guy is a good liar.