“Innocent Until Proven Guilty”, or at Least it Should be!

“One of the most sacred principles in the American criminal justice system, holding that a defendant is innocent until proven guilty. In other words, the prosecution must prove, beyond a reasonable doubt, each essential element of the crime charged.”

For a second time, a Florida Judge has ruled that the recent change to the Florida “Use of Force Statue” is unconstitutional. Florida is well known for its original use of force statute that was errantly called “Stand Your Ground” even though the law that was talked about is much more than those three words. The actual title of the law is “Use or threatened use of force in defense of person.
When the law passed, the Florida Courts made a change to the law in procedural law, by requiring a person who uses self-defense to prove in a hearing before any criminal trial, that they used force in self-defense. So, in other words, you had to have a hearing and prove to the court that you used force in self-defense, BEFORE you are charged with criminal charges, and the burden of proof rested on the defendant, not the State. Now I am not a lawyer, nor am I a Judge, but even I know that the US judicial system was set up so that the State must prove you are guilty of a crime and not the other way around.
I never heard anyone say the court system was supposed to be set up so that a person when accused of a crime by the State, had to prove their innocence. I have a little bit of experience in being in court, having arrested several thousand people over the last 35 years. But one thing That I always knew was that it was my job, and the job of the State Attorney to prove a person I had arrested was guilty of what I charged them with “beyond a reasonable doubt.”. It has always been the government’s job to prove guilt and not the citizen’s job to prove their innocence. The 6th Amendment in the American Constitution guarantees an individual the right to a fair, speedy, and public trial. The 6th Amendment also enables an individual to have legal assistance, regardless of the charge, and the right to confront adverse witnesses and notice of accusations. These rights are given to all men or women under trial for any wrongdoing. They establish the “innocent until proven guilty” mantra that is present in the United States legal system. It is a corner stone of our legal system. Cornell’s Law School defines this principle as this;

“One of the most sacred principles in the American criminal justice system, holding that a defendant is innocent until proven guilty. In other words, the prosecution must prove, beyond a reasonable doubt, each essential element of the crime charged.
Definition provided by Nolo’s Plain-English Law Dictionary.”

So when the Florida Courts mandated a hearing where the citizen had to prove their innocence, you can imagine that it did not sit well with the men and women that wrote the laws of the state of Florida. And many have said that it was a violation of the very basic principles of our Constitution. So the law makers in Florida decided to right what they saw as a wrong by the COUrts and wrote a change to the current law that simply requires that instead of the citizen having to prove their innocence that the State has to prove they did not use force in self-defense. This is as it should have been all along. In fact many think the hearing that you have to have to claim self-defense in and of itself is not right and a violation of the 6th Amendment. So the lawmakers changed it.
Well, it seems that the Judges and Courts in Florida do not like to be corrected or told they are doing something wrong. So in two recent cases, local Judges in the Miami area (this should not surprise anyone coming from that area of the state) have ruled that the new procedure that follows the 6th Amendment of the US Constitution is unconstitutional. Now you try to figure that one out.
While I am sure that these cases will ultimately end up before the Florida Supreme Court for a final ruling, until then maybe we should just follow the current laws and US Constitutional Amendments? Wouldn’t that be a novel idea?
I know from talking to many people in the legal field, including Assistant U.S. Attorney’s, State Prosecutors and Public Defenders, they are all for following the 6th Amendment. Many have expressed a desire to do away completely with the pretrial hearing as it strikes them as being almost a double jeopardy issue, having to prove the guilt or innocence more than once.
So I offer my layman’s solution to this entire ordeal. If someone uses force and claims self-defense, then if the state thinks that they did not have a legal self-defense use or violated a law, they charge them and put them on trial for that crime. If they cannot prove the citizen committed a crime, then they do not charge the person, and they are free. That is the way it has been for a couple of hundred years now and seems to work just fine. Why are we adding more trials and hearings to a criminal proceeding?
If you use force in self-defense in Florida, it is still currently the law that the State must prove you did not use it legally in self-defense, not your responsibility to prove you did. As it should have been and should always be. The Use of Force law is very easy to understand if you simply read them and try to understand them. They are not overly wordy, easy to understand, and quite clear. Here is a previous article of mine that helps to explain it a bit.
All I can say is good luck to those Judges in Miami who think following the US Constitution is Unconstitutional. But then again they are Judges in Miami of all places.

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“Everytown for Gun Safety” Group is Misleading the Public With Bogus Stats!

“So the next time you hear someone say what an “epidemic” we are having of shootings you tell them they are full of it and being misled by the media and groups who are spending millions on propaganda and not facts.”

I spend a lot of time reading and researching. Many of the things I read are studies on death and injuries in the United States. My sources are usually federally based, since relying on private groups often leads to getting information that is slanted to fit their agenda.

So it is not surprising that information derived from the “Everytown for Gun Safety” group, and others like it, tend to bend and misstate numbers to suit their agendas. My agenda is simple. I believe every American has a right to freedom, to choose how to live, how to express themselves and the right to defend themselves. When you go to Everytown’s website you are immediately hit with numbers and graphics that make several bold, anti-gun claims.

Read the rest here…

It Takes a Good Guy With a Gun to Stop a Bad Guy With a Gun

“Law enforcement is reactionary by its very nature — remember, they come when you call, but you have to be able to call them.”

As news unfolded last week in this country, many things got splashed across our television screens and repeated over and over again. If the story is one of death or terror, it usually gets plenty of airtime and lots of print. A perfect example is the very newsworthy shooting at the Republican softball practice. A lunatic, left wing fringe ‘wanna-be killer’ tried to target unarmed and defenseless Congress members. It got the press time it deserved.

The attempted murder of our Congress members was stopped by two armed plain clothes police officers assigned as dignitary protection to one of the present members. Even after being wounded, they continued to engage the gunman. They were both transported to the hospital, and the gunman later died from his injuries. The other present members of Congress were fortunate the police officers had been assigned as protection.

Read the rest here.

Righting a Wrong Created by the Courts and Over Zealous Prosecutors…

“If the state of Florida is going to accuse a citizen of committing a crime, the state of Florida should have the burden of proof at each and every part of the proceedings.”

Yesterday was a huge step in the right direction for Constitutional believers and concealed carry license holders in Florida. The ripple effect could be felt nationwide.

Gov. Scott (R) of Florida signed SB-128 into law, correcting what many, especially the legislators in Florida who wrote the original “Justifiable Use of Force”, thought was a travesty of the courts.

What many people who are unfamiliar with self-defense laws do not know is that in Florida if you used a firearm or any other weapon in self-defense, before this Bill was signed into law, you had to have a hearing before a Judge and the prosecution to prove you used it in self-defense. This was the only way to be able to claim self-defense immunity. Yes, you read that correctly, you had to prove in a court of law that you were innocent.

 

Read the rest of the story here…

Florida Officers are NOT Taught Firearms Law in the Police Academy.

I can only speak for my state, Florida, but I have found something that is very eye opening and needs to be addressed by the State of Florida.

I found that in the Basic Law Enforcement Officers Training Curriculum there is no mention anywhere of the laws and procedures relating to firearms and Concealed Carry License holders and laws, and it is vital that it be addressed immediately as it could result in the serious consequences for both my fellow law enforcement officers, and the law abiding citizens of Florida!

I have been teaching and training law enforcement and corrections officers in Florida for more than 34 years. I currently am the Law Enforcement/ Corrections Training Coordinator at Santa Fe College, Institute of Public Safety in Gainesville, and have been there for going on 20 years now. I have been very active in the past in writing and developing the FDLE/CJSTC Curriculum that we use to teach in our basic courses, acting as an SME (Subject Matter Expert) for FDLE on several subjects.

As part of my duties as coordinator, it is important that I review the current curriculums and make sure that we are teaching all of the needed information to make our officers/ deputies the very best informed and trained LEO’s we can. In addition, the more knowledgeable our LEO’s are the better they are equipped to handle situations that arise during their careers, and also helps to keep them from being liable for any misdeeds due to the lack of knowledge or training. It was while reviewing last years and this year’s Basic LEO curriculum that I found a serious omission in the text and materials.

I am sure that if I asked you how much time we spend on the firearms laws in the State of Florida in the Basic Academy you would probably say at least several hours, right? I mean with over 1.7 million concealed weapons license holders, you would think that we would address these laws and the proper way of dealing with this group of law abiding citizens correct? Well, we do not. There is actually 0 (zero) time or lessons dedicated to the instruction of the Firearms laws in the state of Florida. Even though Officers are expected to know and deal with these laws almost on a daily basis. In fact, we do not cover the laws concerning the CWL holders of Florida and what is legal and what is not as it pertains to citizens possessing firearms.

There are even only a few very brief, very short mentions of the Florida Chapter 790 in the entire training text. One of which simply mentions that it is one of the warrantless arrest exceptions for “Carrying a Firearm in Violation of an Injunction (s. 790.233, F.S.)” and “Carrying a Concealed Weapon (s. 790.02, F.S.)”[1] in Chapter 1. Chapter 2 mentions it as one of the crimes in Chapter 2, Unit 3, Lesson 2, Elements of crimes where it covers “carrying a Concealed Weapon (without a license), s. 790.01, Misdemeanor/ Felony”[2]. That is it! That is the entire law enforcement curriculum on dealing with firearms laws.

It is understood that we cannot cover every law and every situation in the Basic Law Enforcement Academies. I know this better than most people. But I also know that with the increase in Concealed Weapons License’s in the State of Florida (now over 1.7 million!) officers are encountering the law abiding citizen that is legally armed more and more. And with several current cases and lawsuits against officers and departments for unlawful arrests[3], or otherwise unknowingly violating a law-abiding, licensed citizens’ rights and getting complaints filed against them, we need to do something to better protect our officers, departments and the law abiding citizens of Florida.

I first discovered this lack of information when working on an in-service training curriculum with the Alachua County Sheriff’s Office Training Unit. They were getting complaints about officers disarming CWL holders during routine traffic stops and were investigating the legality of this issue and trying to better educate their Deputies. I assisted with the curriculum due to my involvement in this subject matter for a number of years.  We developed and used a very good curriculum and taught their deputies during in-service about the current state laws concerning the carrying of firearms by citizens. Both lawful and unlawful, and the training was well received.

The major issue at hand is the practice of officers “disarming” lawfully carrying citizens on the side of the street without any further reason than they are armed. Any handling of a firearm (which the LEO may not be familiar with) on the side of the road or elsewhere is potentially dangerous. It has been discussed and there is case law to support the view that officers, while being able to use Stop and Frisk (F.S.S. 901.151) when someone is under investigation for a criminal act, and when finding that the person may be armed AND is a danger to the officer, the officer may frisk for weapons, it does not cover frisking or disarming a law abiding citizen, who is not breaking any laws other than a possible civil infraction of traffic law. Officers can and do ask motorist and passengers if they are armed, and rightly can do so. But by Florida law it is not covered that they can then, upon learning they are a licensed, lawfully carrying citizen, disarm that person and deprive them of their property. In fact, the courts have held otherwise. In fact case law states that it is not permitted.[4] In fact, Florida law does not require a citizen to notify an officer they are lawfully armed unless the officer directly asks the person if they are armed (790.06).

In order to prevent citizen complaints and lawsuits for violation of citizens’ rights, do away with the unnecessary handling of firearms on the side of the street, and to increase the trust of the citizens with our police officers statewide (which is vital right now considering current events) I respectfully request that the CJSTC consider adding a lesson on Chapter 790, Firearms Laws and include as part of that, “Law Enforcement interactions with Concealed Weapons License Holders”.

This training is vital to our current situation and may help prevent unnecessary litigation and even possible injury or worse happening to one of our LEO’s or a law abiding citizen. And it is important to remind everyone involved that there are multiple cases now of lawfully armed citizens saving the lives of Police Officers across the nation! Lawful gun owners are not the problem or the enemy!

 

Refs:

1 Florida Basic Recruit Training Program, Text Book 1, Version 2016.07, Page 52 & 53.

2 Florida Basic Recruit Training Program, Text Book 1, Version 2016.07, Page 74.

3 Freeman & Florida Carry v. City of Tampa, et al./ Norman vs. State of Florida (currently under review by the Florida Supreme Court) / Florida Carry v. City of Daytona Beach

4 741 So.2d 1268 (1999), Bruce WELCH, Appellant, v. STATE of Florida, Appellee. No. 98-2615. District Court of Appeal of Florida, Fifth District.

[1] Florida Basic Recruit Training Program, Text Book 1, Version 2016.07, Page 52 & 53.

[2] Florida Basic Recruit Training Program, Text Book 1, Version 2016.07, Page 74.

[3] Freeman & Florida Carry v. City of Tampa, et al./ Norman vs. State of Florida (currently under review by the Florida Supreme Court) / Florida Carry v. City of Daytona Beach

[4] 741 So.2d 1268 (1999), Bruce WELCH, Appellant, v. STATE of Florida, Appellee. No. 98-2615. District Court of Appeal of Florida, Fifth District.

 

Mandating Self-Defense Insurance for those that Carry Firearms – good or bad idea?

“The cost of using your firearm in self-defense can be in the hundreds of thousands of dollars if you have to hire a lawyer, get yourself bailed out of jail, and fight for yourself in court.”

There has been some back and forth in various media and groups on the internet about possible gun control laws that would require a person who carries a firearm for self-defense to have insurance in case the firearm is used in any incident. And some legislators thought about making it mandatory to get a concealed carry permit. I don’t think I need to tell you this is a bad idea on many levels, but just in case, let me try.

First, you should NEVER have to pay to exercise a right guaranteed by the Constitution. But even that is still not a reason good enough for some. Second, by requiring insurance to be allowed to carry a concealed or open carry firearm, you are limiting the exercise of a right to only those who can afford to purchase the insurance. That is basically “disenfranchising” to those with a lower socio-economic status. Third, the market is very limited in the choices of insurance carriers, and there is no “standard” that one can look for in a company.

Read the rest of the story here…

Reasoning with an Anti-Gun Advocate on Twitter…

“If anyone thinks it’s easy to get your point across using the limited characters on Twitter..”

I have been involved in many discussions with anti-firearms advocates over the last few years. For the most part, they start out with a statement about how “common sense” gun laws are needed. So I usually ask, “Name one law that has ever stopped a criminal who is intent on committing a crime from doing so?” Most of the time that gets them all riled up, and the conversation on their side devolves into insults and name calling.

I still try to talk some sense into those that will at least listen. Now and then you get that one that just flat out surprises you! This happened to me the other day on Twitter. If anyone thinks it’s easy to get your point across using the limited characters on Twitter, you have not used it in that way, or are not very verbose like me. But I still try, and it is refreshing when I find that one fairly open mind that will listen and then has an “ah-ha” moment.

While reading the anti-firearms posts to see who I could engage in a conversation, I encountered a “tweet” from a person using the name “Kitty Sparkle Pants” (I did not make that up!) who posted this message, “kitty sparkle pants‏, May 7, #NotOneMore bracelet arrived: donate to ttp://notonemore.com  for common sense gun laws and get yours. @Everytown”

She was talking about donating money to Everytown for Gun Safety for a bracelet that says “Not one more” on it.

I saw this as a chance to educate and engage. I replied to her post with one of my insights, “If you want ‘not one more’ you would teach people to defend themselves, not seek out ‘safe spaces.’” My statement must have caught her attention because we began a fairly long back and forth discussion with her bringing up the typical talking points, and my using logic. But then things took a turn I was not expecting.

Read the rest here…