I Defended My Loved One—My Pet Part 2 – Florida

In Part I, we saw the actions Clint took to defend his dog from being killed by the neighborhood stray. Now, in Part II you will learn if his actions followed the law. Watch Independent Program Attorney David Katz teach you the law, so you will know what to do if you find yourself in a similar situation.

Paul Ready: Welcome back to Part II of our feature on defending your pets. In Part I, our member Clint was forced to defend his dog against an attack by another bigger dog. Many of you have asked what the law says about how and when you can defend your four-legged friends. The answer will be different depending on the law in your state. That’s why we’ve asked the Independent Program Attorneys in your state to tell us more.

David Katz: Although Florida’s self-defense law allows you to use deadly force to protect another person, it does not extend to protecting your pets. Fortunately, Florida Statute 767.03 does allow a person to shoot a dog that has been, or is in the process of, killing their domestic animals, which includes dogs and cats. Reading the plain language of the statute, it appears that the attacking dog must have already killed a domestic animal, or be in the process of killing one of your pets. You must be careful here as it appears that the attacking dog must be causing such damage to your pet that it is about to die, or could die from the injuries, before you are allowed to shoot the attacking dog. Unfortunately, there is no case law outlining how much damage must happen to your pet before you reach this level. If it is determined that the attacking dog was not killing your pet, you could face animal cruelty charges for shooting the dog, which is a third-degree felony punishable by up to five years in prison

Paul: For more information on when you can use force in your state, please go to GunLawSeminar.com and register to attend one of our events in your area. If you missed Part I of Clint’s story, you can click the link on your screen to see it. And as always if you are not a member we would love for you to join us at uslawshield.com.

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The Restaurant Has a Bar. Can I Carry? Florida

Spring Break is here, and everyone is thawing out after a long winter. Before you take part in the festivities watch Independent Program Attorney David Katz instruct you on the law before you walk into a restaurant or bar with your firearm.

Drinking and Carrying Your Firearms

In Florida, there is no legal limit of intoxication that makes it illegal to carry your firearm. That does not mean you can do whatever you want. Florida law makes it illegal to use a firearm if your normal faculties are impaired by alcoholic beverages or a controlled substance. Although, the legal limit for driving is .08, the legal limit for using your firearm is .10. The term use of firearm is defined in Florida Statute 790.151 as discharging a firearm or having it readily accessible for immediate discharge. Readily accessible for immediate discharge is defined in both the statute and case law as loaded and in your hand.

Therefore, under Florida law, you can legally be as drunk as you can get and still carry your firearm as long as they are not loaded and in your hand and you do not discharge them. The law does not apply to anyone executing lawful self-defense or defense of a loved one.

Carrying a Firearm in a Restaurant or Bar

Florida law does not allow you to carry a firearm in any establishment whose primary purpose is the sale of alcohol or any part of an establishment devoted to the sale of alcohol. If you go in to a restaurant with a bar, you cannot carry in the bar area, but should be able to carry while eating dinner in the restaurant portion. While eating dinner, if you choose to have a beer or cocktail, you will not be violating Florida law if you have your firearm with you. But if you are sitting at the bar, not drinking, but eating dinner because there are no open tables in the restaurant you cannot carry your firearm.

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Florida’s New Gun Law Changes the Age to Purchase All Firearms to 21

SB 7026 became law in Florida on March 9, 2018 when Governor Scott signed the bill.  Since then we have received numerous questions regarding the effects of the new laws.   Section 12 of the bill amends Florida Statute §790.065 to ban the sale of any firearm to a person under 21 years of age.  The text of the new law creates a conflict with §790.17 and leaves unclear whether or not a person between 18 – 21 may purchase a firearm in a private sale.

Florida Statute §790.065 Sale and Delivery of firearms relates to the steps that a licensed importer, licensed manufacturer or licensed dealer must take prior to selling or delivering a firearm to a purchaser.  Nothing in this section has previously dealt with the private sale of firearms.  However, under the recently adopted amendment to the law, §790.065(13) now begins with the sentence, “A person younger than 21 years of age may not purchase a firearm.”  The rest of this amended section deals with the same group of licensed importers, manufacturers, and dealers as before and no penalties are listed that apply to a private sale to a person under 21 years of age. However, the first sentence as noted above does not include language stating that it applies only to those purchases made from a licensed importer, manufacturer, or dealer and seems to be a blanket prohibition against any sale to a person under 21 years of age.  This section does not make it illegal for a person under 21 to possess a firearm, but they cannot purchase one.

On the other hand, Florida Statute §790.17(2)(a) was not amended by SB 7026.  It still reads, “a person may not knowingly or willfully sell or transfer a firearm to a minor under 18 years of age, except that a person may transfer ownership of a firearm to a minor with permission of the parent or guardian.” Because this section was not amended and §790.065 deals with licensed manufacturers, importers, or dealers, it is unlikely the new law was intended to be a blanket prohibition against all sales of firearms to those under 21 and was likely intended to apply to only licensed manufacturers, dealers, and importers.  Until there is clarification, we strongly caution that the actual wording of the 790.065(13), “A person younger than 21 years of age may not purchase a firearm” be heeded.  We are reaching out to the office of the Attorney General for guidance and will update this blog should guidance be provided.

—David Katz, U.S. LawShield Independent Program Attorney for Florida

To watch David’s Breaking News report click here.

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Bump Stocks in Florida: What You Need to Know About the New Law

On March 12, 2018, the State of Florida passed a comprehensive new law containing 105 pages of additions and changes to Florida’s gun laws.  On page 26 of the new law lies a single paragraph that has thousands of Floridans worried that they are now felons. It is very important to note that many people calling us have missed a key sentence immediately prior this section.

This part of the new law, unlike the rest of the law, does not take effect immediately.

Florida’s bump stock ban goes into effect on October 1, 2018.

Beginning on October 1, 2018, the possession of a bump stock is a third-degree felony.  There is no provision in the law that grandfathers in those who already own a lawfully-purchased bump stock.  If you currently own a bump stock you must sell it, give it away, destroy it, or turn it in prior to October 1, 2018.

Under the new law, “bump stock” is defined as a conversion kit, tool, accessory, or a device used to alter the rate of fire of a firearm to mimic automatic weapon fire or which is used to increase the rate of fire to a faster rate than is possible for a person to fire such semiautomatic firearm unassisted by a kit, tool, accessory, or device.

Seemingly, this ban therefore also includes not only traditional bump-stock accessories, but any high-speed trigger or alteration that would make your firearm fire at a more rapid speed than the manufacturer originally designed it to fire at.

Clarification of what is included and is not included in the definition of bump stock may come at the expense of a few, arrested for modification of their firearms, in court cases, or in future legislation. For now, if you have any accessory or device that has increased the speed at which you can fire your firearm, you should consider this ban as applying to you.

It is very likely that most local Sheriff’s offices and police departments will establish procedures for those who would like to turn in their soon-to-be-illegal bump stocks.  If you are considering turning in your bump stock, it is best to call the Sheriff or police department near you and ask them if they have procedures in place that would allow you to turn over your would-be contraband prior to the effective date of the new law.

—David Katz, U.S. LawShield Independent Program Attorney for Florida

To view David’s breaking news video about the law click here.

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Breaking News: Florida Passes Restrictive New Gun Laws

Update

We have heard your questions and concerns about the passage of SB 7026. Independent Program Attorney David Katz is here to answer these questions through a series of blog posts about different sections of the law. Click on the links below.

Bump Stocks

Firearms Purchase Age

Original Post

Will Your State Follow Florida’s Lead and Pass Restrictive New Gun Laws?

Earlier this afternoon, Florida Governor Rick Scott signed Florida SB 7026 into law.

Watch Independent Program Attorney David Katz explaining the new law.

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Wildlife Conservation Commission Officers in Florida: What You Need to Know

Florida Wildlife Conservation Commission Officers (FWC Officers) are not like the police—they are the police, explains David Katz, Independent Program Attorney for U.S. LawShield in Florida. [Transcript continues below the video.]

 

 

FWC Officers Legal Role

By statute, FWC Officers are licensed Florida law enforcement. They are arguably some of the most powerful police in Florida. In addition, the federal government, specifically the U.S. Department of Interior and the U.S. Department of Commerce, commission Florida FWC Officers with power to enforce federal fisheries and wildlife laws in Florida. FWC Officers have full police power to inspect, search, seize, and arrest. Note this police power is not simply for hunting or fishing violations. FWC Officers possess the full power to arrest for any violations of the law, hunting related or not. So, understand, when you’re dealing with an FWC Officer, you are dealing with a police officer. If you are caught breaking the law, he or she will perform their duties in enforcing the laws and appropriate restitutions.

FWC Officers and Searches and Seizures

We are all familiar with our Constitutionally guaranteed rights contained in the Bill of Rights against unreasonable searches and seizures. Those hallowed words are memorialized in the Fourth Amendment to the U.S. Constitution. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.”

However, what do these words mean when you are confronted by an FWC Officer? What are their police powers to search you or your property? Does the Fourth Amendment have any meaning at all anymore? For many lovers of liberty, the rights guaranteed by the Fourth Amendment have been largely chipped away and provide little real protection in real-life scenarios. This has been done by courts creating legal exceptions to the Fourth Amendment so broad as to allow a warrantless search, unreasonable, articulable suspicion alone.

The legal standards for an FWC Officer to search your property, including freezers, coolers, refrigerators, and other areas in cabins, shacks, homes, trailers, or vehicles, are contained in Florida Statute 339.3311, which provides that an FWC Officer may examine any person, boat, conveyance, vehicle, game bag… or other receptacle for wild-animal life, marine life, or freshwater aquatic life, or any camp, tent, cabin, or roster in the presence of any person stopping at such or belonging to such camp, tent, cabin, or roster, when such officer has reason to believe and has exhibited his or her authority and stated to the suspected person in charge the officer’s reason for believing that any of the aforesaid laws have been violated at such camp.

What is reason to believe? This issue has been left to the courts, and as such, almost anything seems to pass for a legal justification. Additionally, Florida Statute 339.3313 (2) states that an FWC Officer who has probable cause to believe that the vessel has been used for fishing prior to the inspection shall have full authority to open and inspect all containers or areas where saltwater products are normally kept aboard vessels while such vessels are on the water. Such as refrigerated or ice locations, coolers, fish boxes, and bait wells. Note that this applies to even law-abiding anglers. The only requirement here is that the FWC Officer have probable cause to believe you have been fishing.

FWC Officers and Stop-and-Board Powers

FWC Officers also have the authority to stop and board vessels which are not being used for fishing. Just being on the water gives an FWC Officer a right to stop you, without cause, to conduct a safety inspection. Further, Florida Statute 379.334 gives the FWC Officers the authority to board any vessel boat or vehicle or to enter any fish house or warehouse or other building exclusive of residence in which game, hides, fur-bearing animals, fish, or fish nets are kept and to search for and seize any such game, hides, fur-bearing animals, fish, or fish nets had or held there in violation of the law without a warrant if the officer has probable cause to believe that the fishing or hunting laws have been broken.fwc officers

FWC Officers Jurisdiction

The lesson is that FWC Officers have extensive search powers, and they will use them whenever it is necessary to perform their duties. Just as deer and other wild animals cross city and county lines, so does the jurisdiction of Florida FWC Officers. Although FWC Officers in Florida may have a home base, their jurisdiction is statewide. This means that an FWC Officer’s jurisdiction extends to every corner of the state, not only where wild animals and wildlife can be found. FWC Officers have power like other police officers to make arrests anywhere in the state where violations of the law are committed in their presence, but unlike other officers of the state, they may also make arrest for violation of the law not committed in their presence, if committed on lands under the supervision of the FWC commission, including state parks, coastal and aquatic managed areas, greenways, and trails.

 

 

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Hurricane Irma: Evacuating from Florida with Firearms?

Hurricane Irma

As Hurricane Irma approaches Florida, we thought it important to remind our Members of the laws regarding firearms that may apply to them as they prepare to evacuate their homes and head to safety. In 2015, Governor Scott signed into law an “Emergency Concealed Carry” bill.

The new law is found in Florida Statutes 790.01 (3)(a) and in relevant part states that the law that makes it illegal to carry a concealed weapon without a license does not apply to:

(a) A person who carries a concealed weapon, or a person who may lawfully possess a firearm and who carries a concealed firearm, on or about his or her person while in the act of evacuating during a mandatory evacuation order issued during a state of emergency declared by the Governor pursuant to chapter 252 or declared by a local authority pursuant to chapter 870.

As used in this subsection, the term “in the act of evacuating” for Hurricane Irma means the immediate and urgent movement of a person away from the evacuation zone within 48 hours after a mandatory evacuation is ordered. The 48 hours may be extended by an order issued by the Governor.

Evacuation Ahead of Hurricane Irma

It is important to note that the law does not go into effect unless two things have happened:

1) The Governor or local authorities issue or declare a State of Emergency
2) There is a MANDATORY evacuation order issued.

If both of the above conditions have been met for Hurricane Irma, then a person who is evacuating within 48 hours of the order of evacuation may carry a weapon concealed during evacuation. The 48 hours may be extended by order of the Governor. This applies to people with or without a CWFL who have a lawful right to possess a firearm.

Getting Out Ahead of Hurricane Irma

Many of our members may be considering evacuating to a surrounding state because of Hurricane Irma.

Both Georgia and Alabama recognize Florida’s CWFL, however, the emergency evacuation law is not recognized and only a CWFL holder may lawfully carry concealed in these states subject to their laws and restrictions. Both Georgia and Alabama allow those without permits to carry in their vehicles as long as they are not a person prohibited from carrying by law. (Felony, under 21 etc.)

Georgia allows the carrying of a loaded handgun in a vehicle occupied by any who would qualify for a permit. Alabama only allows non licensed individuals to carry an unloaded handgun, cased and secured in the trunk or rear storage area. So if you do not have a CWFL and you are headed to Alabama ahead of Hurricane Irma, make sure to properly secure your unloaded firearm before you cross the state line. —by David Katz, Independent Program Attorney for U.S. LawShield of Florida

 

An Open Letter to Our U.S. & Texas LawShield® Family

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Back to School: Firearms Laws You Need to Know in Florida

Back to School

Do you have kids heading back to school in the Sunshine State? Let U.S. LawShield Independent Program Attorney David Katz explain the laws in Florida regarding guns and schools:

 

 

The possession of a firearm on school grounds is generally illegal with few exceptions.

Florida Statute 790.06 contains several subsections that explicitly prohibit the carrying and possession of a firearm on school grounds.

Firearms are not allowed at any school or college athletic event not related to firearms.

Florida law broadens this prohibition by applying it to all school-sponsored events and school property.

A person may not possess a firearm or other weapon at a school-sponsored event or on the property of any school, school bus, or school bus stop, subject to the exceptions explained below, found in Florida statute 790.115.

This includes the grounds of any elementary or secondary school facility or administration building and career centers.

Florida does not allow for the concealed or open carry of firearms on university or college campuses.

However, if an individual is a registered student, employee, or faculty member of the college or university, they may carry a stun gun or non-lethal electric weapon or device designed solely for defensive purposes, if it does not fire a dart or projectile. Further, recent court decisions have approved having a firearm securely encased in one’s vehicle on a college or university property.

As mentioned previously a person may carry under one of the few exceptions laid out in Section 790.115(2)(a).

A firearm can be carried in a case to a firearms program, class, or function that has been approved in advance by the principal or chief administrative officer of the school, as a program or class to which firearms may be carried or carried in a case to a career center having a firearms training range.

What about parking lots? Or when you pick up your kids or drop them off at school?

Concealed firearms can be carried without a license in a vehicle under Florida law as long as the person is 18 or older and the firearm is securely encased or otherwise not readily accessible for immediate use.

This extends to the carrying of a firearm in a person’s vehicle on the grounds of a school or at a school activity.

However, school districts are free to adopt written and published policies that waive this exception for purposes of student and campus parking privileges.

This means that while firearms in vehicles on school parking lots are legal under state law, and an individual school may have a policy that makes it illegal to have one on the lot. Further, even in a parking lot of a school that does not have a policy prohibiting firearms on the property, firearms still may not be taken out of the vehicle or into a school building.

Finally, it is important to remember that under the federal Gun Free School Zone Act unless you have a CWFL, you are committing a federal crime, punishable by up to five years in prison if you carry a firearm within a thousand feet of a gun-free school zone.

So if you are not a concealed weapons and firearm licensee, avoid driving in or near school zones in Florida.”

Florida Moving Forward On School Carry Proposals

In Florida, Judge Rules Against Guns in Campus Housing

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Florida’s Stand Your Ground Law to Face Legal Test

Stand Your GroundThe Stand Your Ground self-defense law in Florida has seen its share of legislative battles; now, it’s facing a legal test.

In June, Gov. Rick Scott signed a bill that declared the state, and not the defense, has the burden of proof in pre-trial hearings to decide if the stand your ground defense is appropriate at trial.

But on July 3, Miami-Dade Circuit Judge Milton Hirsch ruled in a court order that the legislature overstepped its constitutional authority to pass the bill. Hirsch made the ruling in a case involving Liletha Rutherford, a Florida woman charged with aggravated assault with a firearm and grand theft.

Miami-Dade Circuit Judge Milton Hirsch challenges Stand Your Ground ruling
Miami-Dade Circuit Judge Milton Hirsch

David Katz, an independent program lawyer for U.S. Law Shield of Florida, explained that Rutherford sought the Stand Your Ground immunity. But, Katz added, Hirsch asserted in his 14-page order that the state’s constitution empowers the Legislature to make “substantive” laws such as the laws against criminal activity and their corresponding punishments.

Katz said the judge believes the constitution says the rules for court procedures are “procedural” and it’s up to the Florida Supreme Court to decide those, not the Legislature.

The judge wrote, “Because questions of burden of proof are procedural rather than substantive, however, I necessarily find the demised legislative changes to be unconstitutional.”

Katz said the judge’s order and the law itself face more battles in the state’s appellate courts and the Florida Supreme Court.

Katz also told us that “it is important to realize that Judge Hirsch’s ruling only has effect in his courtroom.  Although some Judges may look at is as persuasive, it is not binding in any Courtroom but Hirsch’s.  In effect, other Judges in the same courthouse have disagreed with Hirsch’s ruling and given the new law full effect in their courtroom.”

A spokesman for the governor said “the office is studying Hirsch’s ruling,”   Further, a spokeswoman for Attorney General Pam Bondi said that her “office is getting ready to appeal the order.”

The Stand Your Ground law in Florida states that a person is not obliged to retreat in the face of danger and can use deadly force as self-defense. It became law in 2005; seven years later, George Zimmerman used the defense to get an acquittal in the shooting death of Trayvon Martin.

Critics say the law could cause more violence with a “shoot first” way of thinking among Floridians who choose to arm themselves for self-defense.

But prosecutors especially didn’t like the pre-trial burden of proof placed on them because they had to show clear and convincing evidence that someone did not act in self-defense. They said the rule essentially forces them to try a case twice: once at the self-defense hearing, and again at the actual trial.

Supporters praised the bill’s signing. They said that the burden of proof is always on the state in criminal proceedings, and a pre-trail hearing should be no different.

“Today’s Miami trial court ruling attacks the Legislature’s role in defining and protecting our individual rights,” State Sen. Rob Bradley, a sponsor of the bill, wrote on Twitter.

A sponsor of the House version, State Rep. Jason Brodeur added, “So judges should make laws? This whole time, I have been so confused…what do I do as a legislator again?”

—By Bill Miller, U.S. and Texas LawShield® blog contributor

Related:

 

In Florida, ‘Bretherick’ Makes Self-Defense Harder

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