Brein (Brien) Basarich
An exotic dancer from Lakeland, Florida was arrested last week for allegedly posting threats about a possible mass shooting online. Brein Basarich posted on Tumblr under the username “taking lives” that she was thinking about purchasing An AR-15 and had a “vision” of a bar or club with one way out and plans and firing that rifle into a crowd. Her name has also been reported as “Brien Basarich”, I’m not sure which one is correct.
This is a poor criminal case against her… the ‘threats’ that she posted probably do not qualify as threats under Florida law. While posting something on the internet is sufficient to satisfy the “written” element, generally threats must be pretty specific, and not just generalized talk about her “visions” or conditional claims that she could do something. She will say that musing about her fantasies is not a threat, and that she has a Constitutional right under the first amendment to write about her musings, even if they might be violent or unpleasant. That fist amendment protection does not extends to “true threats“, if this qualifies. Obviously law enforcement is sensitive to the through of a shooting at a club, especially so close to where the Pulse tragedy occurred, but they would likely need something more to sustain a prosecution than has been reported so far. Without that, the prosecutors may be forced to drop the charges. It will probably be a few weeks before the filing decision is made.
Posted in Criminal Law, First Amendment, Florida, Tampa Bay area
Tagged badstripper, brein basarich, dancer, firearms, first amendment, lakeland, polk, terrorism
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
Posted in 10-20-Life, 2nd Amendment - Bear Arms, Criminal Law, Florida, Florida Cases, Stand Your Ground, Supreme Court
Tagged asasult, braden robinson, firearms, jared bretherick, kissimmee, self defense, stand your ground
I missed this in the paper last month: Tariq Khan was arrested for multiple charges, including aggravated assault and assault on a law enforcement officer. He was angry, and his wrath was apparent. News-press.com covered the story with this headline: “Wrath of Khan? Cape man accused of assault on neighbor, officers”. Well played, News-Press!
Tariq Khan Mug Shot
Judging by the booking photo, Cape Officers didn’t take to kindly to his waving a gun around when they arrived. He was charged with resisting an officer. By the looks of it, he may have been resisting the ground with his face when they took him in to custody (and then to the hospital). That said, if he pointed a gun at officers, they would have been justified in shooting him at that time. Ultimately, he put the gun down, and placed his hands on top of his head to surrender. According to the officer, he moved his hands from his head, at which point the officer threw him to the ground. The SAO declined to file on the resisting charge.
Original article: http://www.news-press.com/story/news/crime/2014/04/10/cape-coral-man-arrested-assaulting-officers/7553387/
I haven’t been able to cover the Marissa Alexander case much on this blog. For those unfamiliar, Ms. Alexander was convicted and sentenced to 20 years for Aggravated Assault for firing what she claimed was a warning shot in the vicinity of her estranged husband, as well as two of his children. It has drawn comparisons to the Zimmerman case, as self-defense was claimed. Factually, it differed because the testimony was that she went out to the garage to retrieve the gun, before returning and firing it. Her conviction was overturned on appeal for an error in the jury instruction.
A group of Jacksonville pastors are encouraging the State to reopen their original offer, which was for 3 years in prison. Ms. Alexander would not have to serve much more time, thanks to the credit for time she has already served. She had initially rejected the offer, choosing to go to trial on her justified use of force defense. This new push is interesting, as it differs from many outside pundits claiming that she should not have been charged at all. This middle ground suggests that she would be punished for resorting to gun play (which was not found to be justified by the jury at the first trial), but would allow for a much more reasonable punishment than the 20 years mandated by Florida’s 10-20-Life Law. Under recent legal developments, the court must impose each 20 year sentence consecutively, so if she is convicted again of three counts, the court will be obligated to sentence her to 60 years.
The Florida legislature is currently considering a “warning-shot” bill that would be an exception to 10-20-Life, but even if it passes, it may be too late for Alexander. Her trial is set for late July, and she is expected to again argue self-defense / justifiable use of force. The Florida Supreme Court may take up the issue to determine whether the legislature intended to mandate consecutive sentences.
This case is a better example of the unjust sentences that can occur with non-discretionary sentencing than it is an exemplar of Stand Your Ground. The judge found that Stand Your Ground did not apply due to the fact that she returned to the confrontation. Still, outside of prosecutor Angela Corey’s office, it would be hard to demonstrate that 60 years in prison, essentially a life sentence, would be just under the circumstances. Ms. Alexander was in an abusive relationship, had no prior criminal history, and nobody was physically harmed when she discharged the firearm. Ms. Corey’s office has chosen to proceed with the greatest level of charges, and if successful, will mandate 60 years, even if the judge does not want to do it, and regardless of any mitigating circumstances. For that reason, California has been reexamining its notorious three strikes law, in an attempt to prevent costly, unjust sentences.
Posted in 10-20-Life, California, Criminal Law, Florida, Stand Your Ground
Tagged 3-strikes, angela corey, assault, california, firearms, marissa alexander, stand your ground
Samantha Scheibe, who has accused George Zimmerman of pointing a shotgun at her, has sworn out an affidavit stating that she does not want for the State to go forward on the Aggravated Assault charge he is facing. Notably, she also contradicted her previous statement, saying that Zimmerman did not point the firearm at her. She says she was intimidated by investigators who interrogated her after the incident.
The state attorney’s office has the final decision on whether they proceed with charges, but the recantation of the primary allegation will make it hard to prove any case beyond a reasonable doubt. Only the two of them really know what happened that day, and without her cooperation, the state would have great difficulty proving the initial claim. I expect they will not proceed.
Three eyewitnesses erroneously identified Julian Butler, a 21-year old UCF student, as the shooter who fired into a crowd in Gifford, Florida, striking two victims on March 31. His attorney was able to demonstrate that he was not even in town at the time of the shooting, through surveillance video and a receipt from a store in Orlando. Eyewitness identification is one of the least reliable forms of evidence, and proved to be dead wrong in this case, in spite of 3 separate IDs. Police continue to search for the real shooter, and welcome any assitance from anyone who may have information about the case. Kudos to the law enforcement working on the case to act relatively quickly to get Mr. Butler released. Thanks to Joe for the heads up on this story.