Category Archives: 2nd Amendment – Bear Arms

Florida Supreme Court Examines Stand Your Ground Procedure

The Florida Supreme Court heard a case on Tuesday that takes a novel look at the Stand Your Ground Law. The current status of the law is that a defendant can file a motion for immunity, and will be entitled to a hearing on it. At that hearing, the burden is on the Defendant to prove, by a preponderance of the evidence, that he was justified and therefore immune from prosecution. It’s an evidentiary hearing, with witnesses subject to cross examination, evidence, and argument. It very much resembles a trial without a jury.

The law currently places the burden on the Defendant to demonstrate his immunity. Jared Bretherick’s attorneys argued this week that the burden should not be on the Defendant, rather it should be up to the state to demonstrate that the Defendant is not immune from prosecution. It’s an interesting procedural argument. For comparison, when a Defendant raises a motion to suppress based on an illegal sesarch or seizure, the burden is on the state to prove that there was legal justification for the intrusion. However, the current procedure has been in effect for a few years now, and the court may choose not to disturb it. It may be several weeks before the court issues a ruling. Bretherick faces prison for the Aggravated Assault charge, but still has a right to fight the case at trial if the appeal is unsuccessful. Ironically, it appears the alleged victim has previously served a prison sentence for a road rage incident.

The lower, District Court ruling can be found here: http://www.5dca.org/Opinions/Opin2013/102813/5D12-3840.op.pdf

 

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A Lee County Deputy is Taking Heat for Snatching a Phone / Video

This hit the news a few weeks ago, but it recently came to Crimcourts’ attention. The YouTube video of the Fox 4 story is now up to more than 50,000 views, and multiple stories on PINAC, a blog dedicated to exposing government abuses of photographers.

Phone Footage, from Fox4.com

Phone Footage, from Fox4.com

A man, who doesn’t want his name released for fear of retaliation, was pulled over by LCSO deputies. He says he has been pulled over many times by law enforcement. He was lawfully carrying a firearm, and informed deputies as much. Deputies used a K-9  to conduct a a sniff (a “free-air search”) around the vehicle, and the dog reportedly alerted to possible contraband, though nothing was ever found. After he was pulled out of the vehicle, he decided to record deputies while they were conducting the search. One of the deputies approached him, said that he didn’t want him calling anyone, and took the phone out of his hand.

Before I continue, let me make it clear. The man was well within his rights to record the deputy. He was not doing anything unlawful. Attorney David Shestokas, who was quoted in the Fox story, is absolutely correct. The PINAC blog I mentioned above is dedicated to protecting the rights of individuals to record law enforcement. The Sheriff’s Office has acknowledged this on their Facebook page. Thanks to the proliferation of smart phones and other recording devices, we all get to be government watchdogs. Government officials often don’t like citizens watching over their shoulders.

The Sheriff’s Office has responded in a couple of ways to the media, and social media scrutiny, from this incident. Sheriff Scott wrote a response to Fox 4 reporter Liza Fernandez, which is posted in their online story about the incident. Subsequently, LCSO released a press release to “set the record straight” about the incident. I encourage you to read everything in full to better understand the incident. Bascially, LCSO argues 2 grounds to justify the seizure of the man’s phone, both centering on officer safety concerns. 1. That the phone may have been used to summon other people to the scene, and 2. That the cell phone may have been a firearm in disguise.

First, the deputy says on tape that his specific concern was that he didn’t want the man to call other people. That does not give him the right to take the phone. While the man may have been lawfully detained, and the deputies have have had cause to search his vehicle, they did not have a right to seize his phone, even temporarily. If this were sufficient justification, every time cops pulled somebody over, they could seize their phone. Nope. More than that, since he wasn’t under arrest or in custody, he would be allowed to call somebody. Moreover, he would have an absolute right to call an attorney, had he chose to do so. The seizure of the phone raises Sixth Amendment concerns in addition to First Amendment concerns. Also, the excuse utterly fails because the man wasn’t calling anyone, he was recording the search.

Secondly, the excuse that the cell phone could have been a gun is thin. The deputy on the video doesn’t think it was a gun, he expresses the other concern, that it would be used for a call. Fox 4 prety thoroughly broke down the concern over cell phone guns in their investigative piece. That said, if the deputy had a concern that it was a gun, WHICH HE DID NOT, that concern would not have justified taking the phone and turning off the recorder. IF there was a legitimate concern, such concern only would have justified briefly taking the phone to see if it was a gun. ‘What, oh… your taping on a smart phone which is clearly not a weapon. Sorry, he’s your phone back.’ Frankly, it is misleading to suggest the deputy took the phone because it could have been a weapon, because he is on tape stating otherwise.

The LCSO press release correctly points out that there are limitations and exceptions when law enforcement may legitimately seize a phone or to restrict recording. The irony is that NONE OF THE LISTED REASONS WERE PRESENT. Recording did not threaten the officer or interfere with his duties. The recording did not violate the law. The deputy was not holding it to obtain a warrant, nor did it hold evidence of a crime. In fact, the deputy limited the evidentiary value by turning a recorder off. Finally, there was no exigent circumstance (e.g. imminent danger or destruction of evidence) to support seizing the recording.

The individual in this case does not make himself more sympathetic by not being up front with the officers about his business. He should not have said anything, he is within his rights not to speak, but not to provide false information. However, that’s a red herring, because his lack of candor did not justify the seizure of the phone. David Shestokas suggests that it may have been a battery for the deputy to take the phone. I submit that the definition of theft in Florida includes temporarily depriving someone the use or benefit of their property.

The deputy was not legally justified to seize the phone, even if he gave it back after he completed his detention. Also, there is a Second Amendment concern with this encounter, because the deputies seized his firearm, albeit temporarily, to check to see if it was stolen. The fact that someone is lawfully carrying a weapon does not give the cops grounds to seize it. The fact that is getting lost in this whole debate is that the stop itself looks like a profiling and/or harassment stop. Why did deputies call in the dogs for a stop sign violation, unless they were playing a hunch on this guy? There might be more going on, but the actions sure look shady.

What I’d like to see in this circumstance is when somebody turns on a recorder, that a law enforcement officer says something like:  ‘Great! You can tape the encounter to see that I am legally justified.’ As it is, it’s troublesome that a minority of deputies (and officers) in Lee County have video recorders in their vehicles. It would increase the confidence in law enforcement if more citizen encounters were recorded. It would take guesswork out of hearings in the courtroom if there were more recordings. On the whole, recordings would help prosecutors, because motions to suppress would not be challenged on the word of the accused. This guy says he was being harassed, but a video could show that deputies were acting properly. I’m afraid this incident will encourage cops to grab phones all the time on some BS claim. However, I hope that our local law enforcement uses this as a teaching moment that people have a right to record, and that videos can be good for everyone, law enforcement included. You have nothing to worry about… unless you have something to hide.

Original Fox4 Story

No Charges Likely in Zimmerman Domestic Dispute

Police were called to a home in Lake Mary yesterday by George Zimmerman’s wife Shellie, in regards to a domestic dispute of some sort. Mrs. Zimmerman, who recently filed for divorce, made numerous allegations including violence by Mr. Zimmerman toward her father, and allegations that he was threatening both of them with a gun. She can be heard on the 911 call saying that he was putting his hand on the gun. Authorities responded, as did the lawyers, and after conducting an investigation, that included a temporary detention of Mr. Zimmerman, police declined to file any charges.

More details have emerged today. According to police, they did not recover a firearm. Apparently, Mrs. Zimmerman then backed off of that statement and changed her story about what happened. Mr. Zimmerman claimed that she and her father started the fight. Due to the conflict in evidence, law enforcement was unable to determine that a crime occurred. I am reluctantly including the USA Today link today for the updates, because the 911 recording posted there is defamatory to Mr. Zimmerman. Keep in mind that Mrs. Zimmerman is a convicted perjurer.

I encouraged people yesterday not to jump to conclusions. Social media blew up with cracks about Mr. Zimmerman, and firearms, when it turns out that there was no gun involved. Thankfully, cooler heads prevailed at the incident, and nobody was hurt. I expect the case report will be forwarded to the State Attorney’s Office for review, but would not expect charges to be picked up against Mr. Zimmerman. Frankly, in light of the statements made by Mrs. Zimmerman, she could be facing charges for giving false information to the police, which would also violate her probation. Mr. Zimmerman does not wish charges to be filed, and it’s unlikely the State will want to pick it up.