Okay, not really just automobiles, vans and boats too. Planes and trains will be addressed later.
I hear it all the time, "I can keep a concealed handgun in my car without a permit?" Heck yes. Your conveyance is considered an extension of your home. You don’t need a License to Carry a Concealed Weapon or Firearm there either.
I get a kick about just how many people don’t understand this law. It really isn’t complicated. To make life simple, I’m going to use the term “car”, but if you have a truck, van, boat, or motorcycle, this means you too. All of these are considered “private conveyances”. A bicycle doesn’t count.
If you don’t have a License to Carry a Concealed Weapon or Firearm, you should go get one. In the meantime, you are allowed to travel with a loaded firearm in your car if you keep it securely encased. You are allowed to keep it in a glove box or center console if the lid closes and stays closed on its own with a latch. It doesn’t need to lock (unless you have kids).
You can keep the firearm under your seat if you keep it in a holster with a thumb-snap, which is a personal favorite. You can keep it in a briefcase, purse, or anything similar. A garment bag or paper bag doesn’t qualify since you can still shoot the firearm without opening the bag. The law wants you to first remove, or at least open the bag and THEN discharge it. A shoebox may qualify, but that’s stupid. There are other options as well, but we can play that game for hours.
Use a bag or container that stays closed using a zipper (gun bag), Velcro (gun bag), flap with a clasp (holster), As always, I recommend you spend a few bucks and get something of decent quality and designed to hold a gun, although a purse or briefcase are both fine. If something happens, you want to be perceived as a firearms professional and they don’t use old Buster Brown shoe boxes, do they? Remember that just because something is legal doesn't make it a good idea.
Now without exaggeration I hear about the three-step rule at least once a week, and it still makes me laugh. It comes up regularly in my lectures or when talking to a client. People even seem surprised when I explain the law directly to them. Even my own bankruptcy paralegal didn’t know the rule and he works for me! Maybe I should rethink that hire. Anyway, I digress….
The three step rule, which is a load of crap, is that the gun can be kept anywhere providing you need to conduct three separate steps in order to get to the gun. Nonsense. Maybe we can also go to the replay booth to see if you also made a “football move” once you secured the gun. This law reminds me of the Skunk Ape. People talk about it all the time, but no one has ever really seen it first hand. I don’t know who started this three-step rule foolishness, but we need to forget it. If the gun is securely encased, you are good to go.
I really appreciate the idea of securing a holster to the left wall of a center console. The firearm slides in nicely and stays put, then the lid closes. When needed, it mimics a strong-side draw. There is uniformity in training when you practice, and this assists in muscle memory. It is important to practice your draw regularly. "You will not rise to the occasion, you will default to your level of training." Put some snap caps into the firearm and practice drawing from the console, or the glove box, or wherever you keep it.
If the secure case is not secure itself, you may find yourself adding a step as you remove the casing from the firearm. Where you keep your firearm is important. Think this through some. You pull up to a red light. Your gun is in your glove box. You reach for the gun, your right foot slips off the brake, you move forward.
Now if you have kids, they can’t be left in the car on their own unless the lid locks – and locks well because we NEVER leave kids alone anywhere they can get to a firearm. Once the gun is ready to be securely encased, it can be loaded and secured, and you are good to go.
One common error is made when an otherwise responsible, thinking, professional keeps their firearm in their purse, man bag, tactical bag, briefcase, or fanny pack. They get pulled over and forget that they can’t have the gun outside of their conveyance, loaded and concealed, without a License to carry a Concealed Weapon or Firearm. Oops. Leave it in the car if you get pulled over and you are asked to get out. This also means that while you are in your car, you cannot wear the gun in any manner at all.
Another common error that can result in custom ventilation by the police officer that pulls you over is if you forget that it is stupid to keep your firearm in the same place that you keep your registration and proof of insurance. Imagine Officer Friendly coming up to your car. It’s dark. He asks for your license, registration and insurance. You reach over into your glove box, flip the latch, the little light comes on and out slides a gun. You are now looking down the business end of a service weapon, and for good reason. Firearms professionals don’t make these kinds of errors. They are always aware of where their weapons are.
Now this leads us to the inevitable question, which once answered will end this chapter. Do I tell the officer that I have a gun in the car when he approaches? If Officer Friendly asks, by law you MUST tell the truth and let the officer know you have a gun. This being said, whether or not you should tell the officer you are armed in advance of being asked is a choice only you can make. Unless the officer asks, you have no legal obligation to disclose the information.
For years I’ve advised people to do what I did (note “did” is in the past tense), which was to have both hands on the steeling wheel with my Driver’s License, License to Carry a Concealed Weapon or Firearm, registration and proof of insurance in my left hand. Window open and once Officer Friendly came up to me, I told her that I have a License to Carry a Concealed Weapon or Firearm, a concealed firearm, and where it was.
A recent event with a poorly trained Officer Friendly put a prompt to that practice. To recap, if you wish to disclose the information upfront, that is your call. If you only want to disclose it is Officer Friendly asks, that is fine. Remember that if Officer Friendly does ask, you must tell the truth. As an aside, if the conversation isn’t going well, or it appears that Officer Friendly does not know what the law is, ask for a Supervisor.
Once the police officer learns you have a gun, he will likely ask you to step out of the car so he can get it himself. He will ask for the location of the firearm, and you will tell him. He should take the firearm to his patrol car, and secure it inside. If he unloads the firearm and sets the weapon and ammunition on the hood of his car, ask for a supervisor. Once his business with you is done, he should return the unloaded, open, firearm to you. He will walk away and then return with your ammunition. You are now free to leave.
Remember that most police officers in Florida receive only six months training. They may have been getting coffee when the chapter on guns in cars came up. Police Officers are not attorneys and are no more qualified to give you legal advice than your barber. They may not know the law themselves, so when you think you are correct and the police officer is mistaken, ask her to call for a supervisor. This request must be accommodated. It may take time, but I think it’s worth the wait.
Tuesday, October 20, 2009
Monday, October 12, 2009
Sunday, October 4, 2009
A Brief Inquiry into the Nature of a Self-Defense Case, Part II
A Self-Defense case occurs when the party that would otherwise be a victim, possibly dead and most certainly hurt is now the defendant due to the actions of Self-defense.
The man that signed the complaint is the scumbag attacker that wanted to rob, rape, injure, or kill the defendant. Had the scumbag attacker succeeded in his plans, he would have been the defendant assuming he was ever caught.
In these cases, the defendant is the good girl and the complainant is the bad guy. The State Attorney’s Office will do it’s best to show the defendant as the bad girl.
Since I am not a criminal defense attorney, I prefer to refer to the defendant as the “victim” or “surviving victim”. I use these terms interchangeably as they may best fit into this inquiry.
Because it is the responsibility of the victim to provide the court with evidence on each element of Self-Defense, it is imperative that her attorney provide this evidence in its proper light and be prepared to write proper jury instructions. This is very time consuming.
Assuming deadly force was employed by the victim, her attorney must be able to show that a reasonable person, in the same circumstances, would have believed that there was an immediate threat of death or imminent bodily injury. Here it is important to remind everyone that use of a firearm does not require discharge. One can “use” their gun to persuade the scumbag attacker to retreat and find a softer target without every firing a shot.
Our courts have recently reminded us that the victim did not have to experience fear, but only that a reasonable person would have believed that there was an immediate threat of death or imminent bodily injury. In fact, the victim could have just cleaned and lubricated her gun, left a self-defense class, and completed a half hours worth of dry-fire training. Scumbag attacker makes his move; the victim in turn is at the top of her game and reacts appropriately. Fear may never have entered her mind, but that is a non-issue.
Florida law does provide for immunity from prosecution when self-defense is employed. Sadly, many of our courts don’t understand what this means. It is the responsibility of the state to prove its case “beyond a reasonable doubt”. However, the standard used in a hearing to determine whether self-defense immunity attaches is only “by a preponderance of the evidence”. If you are interested in the difference between the two, look it up, that is beyond the scope of this inquiry.
So we now know that the evidentiary hearing to determine whether or not self-defense was employed can trigger immunity, which in turn will end a criminal or civil case. Important stuff, yes? This is why it is so important that before the victim was attacked, she had a heightened sense of situational awareness. She knew who was around her, what was around her. After the shooting she was able to give law enforcement some important information about who may have witnessed the failed attack; and she can tell her attorney that a Fed-Ex truck was across the street, and the local hardware store was closing. She knows where her empty cartridges landed, and can help establish that when law enforcement hit the scene, it is probably that they unknowingly disrupted the crime scene.
Scumbag attacker’s gun is gone, but so is the blue Ford pickup that sped away soon after scumbag attacker yelled something. Since we know that scumbag attacker fired a shot, the police must have tested for residue. Our victim will be able to show that she didn’t accelerate the condition by inserting her two-cents into an argument between a couple in the parking lot, and therefore lending question as to whether or not she may have acted as an aggressor herself.
Our team of good guys will be able to reconstruct the crime scene to show that due to the distance between the rapidly approaching, and armed attacker, if the victim had waited another ½ second to engage, she would have been severely injured or dead. Due to the disparity of the scumbag attacker and the surviving victim, she used an appropriate amount of force and did not employ excessive force. Her expert witnesses will testify that her actions were appropriate, and why she was trained in this manner.
While our victim was armed, she was not armed because she knew that this confrontation was going to happen. She would not have avoided going to this part of town if she couldn’t find her gun. She is able to provide testimony that her behavior prior to the attack was identical to her behavior the week prior if this was a routine errand. If her gun is usually carried without a round in the chamber, there was no difference this day.
If the court determines she acted in Self-Defense, immunity will attach and this nightmare ends. If not, she must determine if she will appeal or move onto trial.
The man that signed the complaint is the scumbag attacker that wanted to rob, rape, injure, or kill the defendant. Had the scumbag attacker succeeded in his plans, he would have been the defendant assuming he was ever caught.
In these cases, the defendant is the good girl and the complainant is the bad guy. The State Attorney’s Office will do it’s best to show the defendant as the bad girl.
Since I am not a criminal defense attorney, I prefer to refer to the defendant as the “victim” or “surviving victim”. I use these terms interchangeably as they may best fit into this inquiry.
Because it is the responsibility of the victim to provide the court with evidence on each element of Self-Defense, it is imperative that her attorney provide this evidence in its proper light and be prepared to write proper jury instructions. This is very time consuming.
Assuming deadly force was employed by the victim, her attorney must be able to show that a reasonable person, in the same circumstances, would have believed that there was an immediate threat of death or imminent bodily injury. Here it is important to remind everyone that use of a firearm does not require discharge. One can “use” their gun to persuade the scumbag attacker to retreat and find a softer target without every firing a shot.
Our courts have recently reminded us that the victim did not have to experience fear, but only that a reasonable person would have believed that there was an immediate threat of death or imminent bodily injury. In fact, the victim could have just cleaned and lubricated her gun, left a self-defense class, and completed a half hours worth of dry-fire training. Scumbag attacker makes his move; the victim in turn is at the top of her game and reacts appropriately. Fear may never have entered her mind, but that is a non-issue.
Florida law does provide for immunity from prosecution when self-defense is employed. Sadly, many of our courts don’t understand what this means. It is the responsibility of the state to prove its case “beyond a reasonable doubt”. However, the standard used in a hearing to determine whether self-defense immunity attaches is only “by a preponderance of the evidence”. If you are interested in the difference between the two, look it up, that is beyond the scope of this inquiry.
So we now know that the evidentiary hearing to determine whether or not self-defense was employed can trigger immunity, which in turn will end a criminal or civil case. Important stuff, yes? This is why it is so important that before the victim was attacked, she had a heightened sense of situational awareness. She knew who was around her, what was around her. After the shooting she was able to give law enforcement some important information about who may have witnessed the failed attack; and she can tell her attorney that a Fed-Ex truck was across the street, and the local hardware store was closing. She knows where her empty cartridges landed, and can help establish that when law enforcement hit the scene, it is probably that they unknowingly disrupted the crime scene.
Scumbag attacker’s gun is gone, but so is the blue Ford pickup that sped away soon after scumbag attacker yelled something. Since we know that scumbag attacker fired a shot, the police must have tested for residue. Our victim will be able to show that she didn’t accelerate the condition by inserting her two-cents into an argument between a couple in the parking lot, and therefore lending question as to whether or not she may have acted as an aggressor herself.
Our team of good guys will be able to reconstruct the crime scene to show that due to the distance between the rapidly approaching, and armed attacker, if the victim had waited another ½ second to engage, she would have been severely injured or dead. Due to the disparity of the scumbag attacker and the surviving victim, she used an appropriate amount of force and did not employ excessive force. Her expert witnesses will testify that her actions were appropriate, and why she was trained in this manner.
While our victim was armed, she was not armed because she knew that this confrontation was going to happen. She would not have avoided going to this part of town if she couldn’t find her gun. She is able to provide testimony that her behavior prior to the attack was identical to her behavior the week prior if this was a routine errand. If her gun is usually carried without a round in the chamber, there was no difference this day.
If the court determines she acted in Self-Defense, immunity will attach and this nightmare ends. If not, she must determine if she will appeal or move onto trial.
Wednesday, September 9, 2009
Hillsborough County Parks. Ordinance No. 08-17
A Letter to the Hillsborough County Board of Commissioners (9/9/2009):
Dear Commissioners,
I have recently been asked for an opinion as to whether a visitor to a Hillsborough County Park can carry a concealed firearm while on park grounds given the prohibition set forth in Ordinance No. 08-17. Since this opinion concerns a resident of Hillsborough County, I thought it best to share the results of my research with you.
The ordinance in question states, in pertinent part that “No person, except Law Enforcement Officers, shall carry, possess, or use firearms of any type within the Parks or Park Property.” While I am uncertain why the County would pass an ordinance preventing a mother from trying to legally carry a firearm in a public park, unless this ordinance has been subsequently revoked, it does appear to be a problem since Florida is a “Preemption State” and it’s counties and cities are not permitted to maintain their own firearm’s laws.
Section 790.33, Florida Statutes states that the legislature occupies the whole field of firearm regulation, including possession, to the exclusion of all existing and future county, city, or municipal ordinances or regulations, and any such existing ordinances are hereby void. The statute further reads that it is the intent of the statute to provide uniform laws in the state of Florida, to declare all ordinances and regulations null and void which have been enacted by any other jurisdiction other than state and federal.
Since the Florida Constitution states that political subdivisions cannot maintain laws that conflict with state law, I’ve concluded this prohibition against lawfully concealed firearms in county parks to be null and void.
So it appears that if someone is properly concealing her firearm, and has her valid Drivers License and License to Carry a Concealed Weapon or Firearm, that she is within her rights and within the law.
State law does prohibit concealed firearms in many locations such as jails, police departments, schools, bus stops, polling places, and any government facility where a meeting of a county commission, city council, school board, water management, or special district is taking place. Public parks are not one of Florida’s prohibited places.
If you are relying on another authority that I have not considered, please advise. Otherwise, I will be advising my clients accordingly so that they can protect themselves and their loved ones without the threat of criminal prosecution for legally carrying concealed firearms in Hillsborough County parks.
I hope that the county does not maintain any signs at park entrances that misrepresent the current state of the legal order with respect to this issue, and if there are, that they can be modified or removed promptly.
Regards,
J. Patrick Buckley III, Esq.
Dear Commissioners,
I have recently been asked for an opinion as to whether a visitor to a Hillsborough County Park can carry a concealed firearm while on park grounds given the prohibition set forth in Ordinance No. 08-17. Since this opinion concerns a resident of Hillsborough County, I thought it best to share the results of my research with you.
The ordinance in question states, in pertinent part that “No person, except Law Enforcement Officers, shall carry, possess, or use firearms of any type within the Parks or Park Property.” While I am uncertain why the County would pass an ordinance preventing a mother from trying to legally carry a firearm in a public park, unless this ordinance has been subsequently revoked, it does appear to be a problem since Florida is a “Preemption State” and it’s counties and cities are not permitted to maintain their own firearm’s laws.
Section 790.33, Florida Statutes states that the legislature occupies the whole field of firearm regulation, including possession, to the exclusion of all existing and future county, city, or municipal ordinances or regulations, and any such existing ordinances are hereby void. The statute further reads that it is the intent of the statute to provide uniform laws in the state of Florida, to declare all ordinances and regulations null and void which have been enacted by any other jurisdiction other than state and federal.
Since the Florida Constitution states that political subdivisions cannot maintain laws that conflict with state law, I’ve concluded this prohibition against lawfully concealed firearms in county parks to be null and void.
So it appears that if someone is properly concealing her firearm, and has her valid Drivers License and License to Carry a Concealed Weapon or Firearm, that she is within her rights and within the law.
State law does prohibit concealed firearms in many locations such as jails, police departments, schools, bus stops, polling places, and any government facility where a meeting of a county commission, city council, school board, water management, or special district is taking place. Public parks are not one of Florida’s prohibited places.
If you are relying on another authority that I have not considered, please advise. Otherwise, I will be advising my clients accordingly so that they can protect themselves and their loved ones without the threat of criminal prosecution for legally carrying concealed firearms in Hillsborough County parks.
I hope that the county does not maintain any signs at park entrances that misrepresent the current state of the legal order with respect to this issue, and if there are, that they can be modified or removed promptly.
Regards,
J. Patrick Buckley III, Esq.
Friday, August 21, 2009
HairDo’s and Don’ts
We need to have a chat about Hair. No, not the shaggy bob and I’m not talking about structured layers. My wife is wonderfully low maintenance and never bothers me with such nonsense, and I have three sons so such conversations are never overheard in our house. Who would ever listen to my advice on that topic anyhow?
And we’re sure not talking about the musical or movie. Never saw either, have no plans to.
We need to talk about the recent First District Court of Appeals decision, of Jimmy Hair v. State of Florida. Understand at the time of this post the time for a rehearing has not yet expired so it’s not final. Still, I’ve received too many calls, and heard of too many people talking about “Florida’s new law that says you can shoot an attacker even if he tried to escape.” It’s not the case. Let’s talk about Hair.
First the players, Jimmy Hair is the victim of the attack and the party claiming self-defense. Rony Germinal is Jimmy Hair’s friend.
Charles Harper is the attacker and Frye is Harper’s buddy.
The men went to a nightclub on the evening of July 20, 2007. Germinal and Harper exchanged some harsh words. Later that night, Germinal and Hair left the nightclub. Germinal was driving the car and hair was in the front passenger seat.
Harper was nearby and the men exchanged words. Harper walked over to the car occupied by Hair and Germinal and got in, but was being pulled away from the car by Frye. Harper was able to get away from Frye and got back into the car on the driver’s side. Hair had both a License to carry a Concealed Weapon, and a handgun under his seat. Hair and Harper fought in the car. When Frye tried to pull Harper out of the car again, Hair shot and killed him.
Hair claims he was attempting to use the gun as a blunt instrument to strike Harper when the handgun discharged.
Hair is arrested and being charged with first-degree murder. Fast forward to Hair’s murder trial. Hair is claiming that he is immune from prosecution under section 776.032(1), Florida Statutes (2007). The District Court of Appeals agrees in an unanimous opinion and orders Hair’s release.
At trial Hair motioned the Court for a dismissal claiming immunity. After reviewing the evidence in a hearing on the issue, the trial Court denied the motion stating that statutory immunity is irrelevant where the defendant (in our case the victim) was attempting to use the weapon as a club when it “accidentally” went off. Now we know in self-defense cases that the victim must acknowledge that the use of force was intentional, and not an accident. This is most likely what the trial Court was thinking as well.
Now we go to Section 776.032(1), Florida Statutes. The law says that a person using force as permitted in Section 776.013, with some exceptions not applicable in this case is immune from criminal action and civil prosecution.
The “Stand Your Ground” immunity claim is resolved by the trial Court following a pretrial evidentiary hearing. It is the defendant’s (victim’s) burden to prove entitlement to the statutory immunity by a preponderance of the evidence. The appeals Court concluded the trial Court made an error in a conclusion of law.
The following facts were not in dispute: The following facts of this case are not in dispute: The attacker had unlawfully and forcibly entered a vehicle occupied by the victim. While the attacker may have been being pulled out of the vehicle at the time of the shooting, the action was involuntary if it occurred at all. The physical evidence was clear that the attacker was still inside the vehicle when he was shot. The Court then stated that the statute makes no exception from the immunity when the attacker is in retreat at the time the defensive force is employed.
Since the statute makes no exceptions from immunity when the attacker is in retreat at the time the defensive force is employed, the appeals Court found statutory immunity was appropriate, and the motion to dismiss should have been granted.
The appeals Court reasoned that since the victim knew the attacker was in the car unlawfully and used force to get into the car when he was shot, the use of defensive force intended or likely to cause death or great bodily harm was immune from prosecution.
This case is subject to a motion for rehearing.
This case may be appealed to the Florida Supreme Court.
This case is very fact specific, and even if it remains good law, unless you are in the 1st DCA’s region, and find yourself in an identical position, using force against someone trying to retreat or otherwise remove themselves from the confrontation may be a problem.
Use of deadly force against an attacker trying to retreat is not recommended. There is always the chance that the retreating attacker may simply turn to attack again, but in this case the attacker was still essentially facing the victim, so the victim was not shot in the back.
It is good to have this case in the books, but it should not be relied upon for a measured outcome.
This is important since some in the media are already saying there is a “new law in Florida” and it is legal to shoot an attacker trying to retreat. No, that’s not the law. Be careful.
And we’re sure not talking about the musical or movie. Never saw either, have no plans to.
We need to talk about the recent First District Court of Appeals decision, of Jimmy Hair v. State of Florida. Understand at the time of this post the time for a rehearing has not yet expired so it’s not final. Still, I’ve received too many calls, and heard of too many people talking about “Florida’s new law that says you can shoot an attacker even if he tried to escape.” It’s not the case. Let’s talk about Hair.
First the players, Jimmy Hair is the victim of the attack and the party claiming self-defense. Rony Germinal is Jimmy Hair’s friend.
Charles Harper is the attacker and Frye is Harper’s buddy.
The men went to a nightclub on the evening of July 20, 2007. Germinal and Harper exchanged some harsh words. Later that night, Germinal and Hair left the nightclub. Germinal was driving the car and hair was in the front passenger seat.
Harper was nearby and the men exchanged words. Harper walked over to the car occupied by Hair and Germinal and got in, but was being pulled away from the car by Frye. Harper was able to get away from Frye and got back into the car on the driver’s side. Hair had both a License to carry a Concealed Weapon, and a handgun under his seat. Hair and Harper fought in the car. When Frye tried to pull Harper out of the car again, Hair shot and killed him.
Hair claims he was attempting to use the gun as a blunt instrument to strike Harper when the handgun discharged.
Hair is arrested and being charged with first-degree murder. Fast forward to Hair’s murder trial. Hair is claiming that he is immune from prosecution under section 776.032(1), Florida Statutes (2007). The District Court of Appeals agrees in an unanimous opinion and orders Hair’s release.
At trial Hair motioned the Court for a dismissal claiming immunity. After reviewing the evidence in a hearing on the issue, the trial Court denied the motion stating that statutory immunity is irrelevant where the defendant (in our case the victim) was attempting to use the weapon as a club when it “accidentally” went off. Now we know in self-defense cases that the victim must acknowledge that the use of force was intentional, and not an accident. This is most likely what the trial Court was thinking as well.
Now we go to Section 776.032(1), Florida Statutes. The law says that a person using force as permitted in Section 776.013, with some exceptions not applicable in this case is immune from criminal action and civil prosecution.
The “Stand Your Ground” immunity claim is resolved by the trial Court following a pretrial evidentiary hearing. It is the defendant’s (victim’s) burden to prove entitlement to the statutory immunity by a preponderance of the evidence. The appeals Court concluded the trial Court made an error in a conclusion of law.
The following facts were not in dispute: The following facts of this case are not in dispute: The attacker had unlawfully and forcibly entered a vehicle occupied by the victim. While the attacker may have been being pulled out of the vehicle at the time of the shooting, the action was involuntary if it occurred at all. The physical evidence was clear that the attacker was still inside the vehicle when he was shot. The Court then stated that the statute makes no exception from the immunity when the attacker is in retreat at the time the defensive force is employed.
Since the statute makes no exceptions from immunity when the attacker is in retreat at the time the defensive force is employed, the appeals Court found statutory immunity was appropriate, and the motion to dismiss should have been granted.
The appeals Court reasoned that since the victim knew the attacker was in the car unlawfully and used force to get into the car when he was shot, the use of defensive force intended or likely to cause death or great bodily harm was immune from prosecution.
This case is subject to a motion for rehearing.
This case may be appealed to the Florida Supreme Court.
This case is very fact specific, and even if it remains good law, unless you are in the 1st DCA’s region, and find yourself in an identical position, using force against someone trying to retreat or otherwise remove themselves from the confrontation may be a problem.
Use of deadly force against an attacker trying to retreat is not recommended. There is always the chance that the retreating attacker may simply turn to attack again, but in this case the attacker was still essentially facing the victim, so the victim was not shot in the back.
It is good to have this case in the books, but it should not be relied upon for a measured outcome.
This is important since some in the media are already saying there is a “new law in Florida” and it is legal to shoot an attacker trying to retreat. No, that’s not the law. Be careful.
A Brief inquiry into the nature of a self-defense case, Part I
“It is well settled that, if a man is attacked, he has a right to defend himself. If the attack is of such nature as to create a reasonable apprehension of great bodily harm, and he acts under such apprehension, and in the reasonable belief that no other means will prevent harm, he has the right to kill the assailant.” – Unknown Judge. Cir. 1800
The basic elements required to maintain a self-defense case include:
The victim had a reasonable belief that she was in imminent danger of great bodily harm or death.
The victim believed that she, or a third party, was in such imminent danger that the victim could only save herself, or the third party, through the use of deadly force.
The victim used no more force than was needed under the circumstances.
The victim acknowledges that her use of force was intentional, and not an accident.
The victim was not the initial aggressor, nor injected herself into the situation raising the aggression.
Height, weight, and physique of both the victim and attacker are considered. If the victim is smaller, lighter, frailer, or weaker than the attacker, the attackers’ body may provide a sufficient weapons’ threat against the victim. The greater the disparity of force, the easier it is to justify a response.
It is unnecessary that an armed attacker have his gun aimed at the victim for the victim to respond to a threat. If the victim sees a firearm in the waistband of the attacker, the victim may respond since an untrained attacker can draw a gun and shoot in less than one second.
Displaying a firearm as a deterrent against a threat constitutes use of a firearm, but like a warning shot is unwise.
A victim is in the best position if she uses a firearm and ammunition similar to that used by law enforcement. Heavily altered firearms and reloads can be a problem. The law abiding citizen uses factory self-defense ammunition.
A quality holster is beneficial. Resist carrying a handgun without a holster.
To be continued.....
The basic elements required to maintain a self-defense case include:
The victim had a reasonable belief that she was in imminent danger of great bodily harm or death.
The victim believed that she, or a third party, was in such imminent danger that the victim could only save herself, or the third party, through the use of deadly force.
The victim used no more force than was needed under the circumstances.
The victim acknowledges that her use of force was intentional, and not an accident.
The victim was not the initial aggressor, nor injected herself into the situation raising the aggression.
Height, weight, and physique of both the victim and attacker are considered. If the victim is smaller, lighter, frailer, or weaker than the attacker, the attackers’ body may provide a sufficient weapons’ threat against the victim. The greater the disparity of force, the easier it is to justify a response.
It is unnecessary that an armed attacker have his gun aimed at the victim for the victim to respond to a threat. If the victim sees a firearm in the waistband of the attacker, the victim may respond since an untrained attacker can draw a gun and shoot in less than one second.
Displaying a firearm as a deterrent against a threat constitutes use of a firearm, but like a warning shot is unwise.
A victim is in the best position if she uses a firearm and ammunition similar to that used by law enforcement. Heavily altered firearms and reloads can be a problem. The law abiding citizen uses factory self-defense ammunition.
A quality holster is beneficial. Resist carrying a handgun without a holster.
To be continued.....
Wednesday, August 19, 2009
Can you now kill a retreating attacker? Maybe!
For those of us that have taken classes or studied Use of Force, we know it is generally the case that when an attacker is retreating, it is unlawful to use deadly force against the attacker. Instead, we should just let the guy go and report the attack to the police. Now it seems someone used deadly force against their attacker, and while they are claiming that the gun went off accidentally (Yea, right!), although the trial court didn’t buy their argument, the appeals court did.
Please understand that I do not recommend that you use deadly force against someone that is trying to escape. This being stated, the court ruled it lawful in this situation and we are reporting the decision. It’s always possible that this ruling will be overturned.
The First District Court of Appeals published a unanimous opinion today declaring that should a person legally use deadly force, in self-defense, against an attacker that is possibly retreating, that person is immune from prosecution under Section 776.032(1) Florida Statute.
In this case the attacker unlawfully entered the victim’s car. The attacker’s acquaintance tried to remove the attacker from the car when a fight broke out in the car. The victim had a concealed handgun under his seat, and a License to Carry a Concealed Weapon or Firearm. As the attacker’s friend tried to remove the attacker from the victim’s car, the victim shot the attacker. The victim contends he was only trying to strike the attacker with the gun, and it accidentally discharged. The attacker died.
The trial court ruled that statutory immunity was irrelevant in matters where the victim was attempting to use a firearm as a “club” and it accidentally discharged. Since the court found there were disputed issues of material fact, pretrial immunity could not be granted.
The First District Court of Appeals addressed the “Stand Your Ground” law in the 2008 case of Peterson v. State, where it analyzed sections 776.013 through 776.032, Florida Statutes. Section 776.013(1) states,
(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person's will from the dwelling, residence, or occupied vehicle; and
(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
The following facts of this case are not in dispute: The attacker had unlawfully and forcibly entered a vehicle occupied by the victim. While the attacker may have been being pulled out of the vehicle at the time of the shooting, the action was involuntary if it occurred at all. The physical evidence was clear that the attacker was still inside the vehicle when he was shot. The Court then stated that the statute makes no exception from the immunity when the attacker is in retreat at the time the defensive force is employed.
Once again, the statute makes no exception from the immunity when the attacker is in retreat at the time the defensive force is employed.
The victim was aware that the attacker had unlawfully and forcibly entered the vehicle when he was shot. The victim was therefore authorized by section 776.013(1), Florida Statutes, to use defensive force intended or likely to cause death or great bodily harm and was immune from prosecution for that action under 776.032(1).
The Attorney General’s Office seems to disagree with this ruling. The ruling was unanimous, and I’ll be surprised if the Florida Supreme Court changes the ruling.
In the meantime, tread carefully with this one. I do not recommend that you use deadly force against someone that is retreating.
Please understand that I do not recommend that you use deadly force against someone that is trying to escape. This being stated, the court ruled it lawful in this situation and we are reporting the decision. It’s always possible that this ruling will be overturned.
The First District Court of Appeals published a unanimous opinion today declaring that should a person legally use deadly force, in self-defense, against an attacker that is possibly retreating, that person is immune from prosecution under Section 776.032(1) Florida Statute.
In this case the attacker unlawfully entered the victim’s car. The attacker’s acquaintance tried to remove the attacker from the car when a fight broke out in the car. The victim had a concealed handgun under his seat, and a License to Carry a Concealed Weapon or Firearm. As the attacker’s friend tried to remove the attacker from the victim’s car, the victim shot the attacker. The victim contends he was only trying to strike the attacker with the gun, and it accidentally discharged. The attacker died.
The trial court ruled that statutory immunity was irrelevant in matters where the victim was attempting to use a firearm as a “club” and it accidentally discharged. Since the court found there were disputed issues of material fact, pretrial immunity could not be granted.
The First District Court of Appeals addressed the “Stand Your Ground” law in the 2008 case of Peterson v. State, where it analyzed sections 776.013 through 776.032, Florida Statutes. Section 776.013(1) states,
(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person's will from the dwelling, residence, or occupied vehicle; and
(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
The following facts of this case are not in dispute: The attacker had unlawfully and forcibly entered a vehicle occupied by the victim. While the attacker may have been being pulled out of the vehicle at the time of the shooting, the action was involuntary if it occurred at all. The physical evidence was clear that the attacker was still inside the vehicle when he was shot. The Court then stated that the statute makes no exception from the immunity when the attacker is in retreat at the time the defensive force is employed.
Once again, the statute makes no exception from the immunity when the attacker is in retreat at the time the defensive force is employed.
The victim was aware that the attacker had unlawfully and forcibly entered the vehicle when he was shot. The victim was therefore authorized by section 776.013(1), Florida Statutes, to use defensive force intended or likely to cause death or great bodily harm and was immune from prosecution for that action under 776.032(1).
The Attorney General’s Office seems to disagree with this ruling. The ruling was unanimous, and I’ll be surprised if the Florida Supreme Court changes the ruling.
In the meantime, tread carefully with this one. I do not recommend that you use deadly force against someone that is retreating.
Subscribe to:
Posts (Atom)