Florida Theatre Shooting - Now What?

     Here we go again: except this time a more confounding shooting. A 71 year old retired police officer and S.W.A.T. team veteran, enraged by the victim's texting in a theatre, shoots the much younger, bigger man, who responded to his scolding by throwing a bag of popcorn at him. Someone comes forward to tell of a similar conflict with this shooter that did not escalate but bore the signs of edgy confrontation. 

     Should more or fewer citizens carry concealed firearms? Is the presence of a concealed firearm appropriate in every public venue? What is sufficient provocation to justify its use? If someone possessing a lawful firearm exhibits signs of mental or emotional instability, is there a mechanism for further investigation to determine if such possession should continue short of civil commitment? And is this "stand your ground"? This one forces us to look even harder at our gun laws.

        By no account would this be justified as self defense. As a corollary, nor is it stand your ground. There simply was not the type of danger or provocation required. But was this elderly shooter, experienced in firearms use generally and violent conflict resolution specifically, cognitively compromised? As a partial defense or mitigation, that may be what's going on. Small comfort to the victim's family. He's the poster boy for the N.R.A., the guy we WOULD trust with a concealed gun. So much for the gun lobby's position that the presence of such individuals are necessary to stop an Aurora type theatre shooting. They pose their own risk.

     Once again, with its ease of use, a handgun as designed, caused a quick death from close range. They embolden one so armed to use it without adequate reflection rather than back down. Could it be that for many concealed gun carriers, the pump is primed to find a chance to use it? Many questions left unanswered in this scenario. We cannot prevent all unjustified or thoughtless shootings, but we can do more to reduce them.

DUI But NO Impairment

     Imagine you get pulled over. You're sure you've haven't had much to drink, maybe drank just before the stop, and don't feel impaired. You go through the field sobriety exercises on video, you know...follow the pen with your eyes, walk the line, one leg stand, finger-to-nose, alphabet with your head back. The officer feels there's enough proof of impairment to support probable cause for DUI and has you do one more exercise: hands behind your back please and you're cuffed and arrested.

     Amazed, you continue to cooperate and provide two breath tests as requested. You blow .08 or more an hour or two after the stop. Well, that's not at the time of driving you think. Too bad. You hire a lawyer, review the video, you look great. Guess what? You still can be prosecuted for DUI, not for impairment but for being over the legal limit if the state files such an alternative DUI charge. Then you CAN'T show the jury the video or tell them you felt fine because it doesn't matter. Its not "relevant". 

    The state doesn't even have to relate the breath test results back to the time of driving, a numbers crunch extrapolating (estimating) a possible blood alcohol level based on scientifically derived average times to absorb and eliminate alcohol. Cases say up to four hours is O.K between the stop and the breath tests. 

     Only attacks on the test results by the defense extrapolating (if your expensive expert can make the numbers work), or defects in how the breath tests were conducted or how the machine was inspected and maintained matter. You may employ another even more expensive expert to tear apart how these machines work in general. While that's something, and more than most people can afford, it still leaves you with limited evidence and argument to rebut the readings. Rather than do the right thing and reduce the DUI, watch out that the state doesn't just block the full evidence of the case from the jury by changing the charge to a DUI for simply being over the limit, not impaired.

A Tragedy but a Travesty? Of What.....

     Trayvon...the latest household name for tragedy in Florida's criminal justice system. But was the Zimmerman trial a travesty of justice? No. The jury did its job. Too much reasonable doubt. Remember, its not the job of the defense to clarify the state's evidence or to disprove anything. Yes, self defense is an "affirmative defense" to rebut the charges. With reasonable doubt in abundance, self defense filled in the missing pieces.

     Revealed once again is the morally bankrupt aspect of Florida's self defense law, "stand your ground". The legislature removed the reasonable duty to retreat requirement to avoid unnecessary confrontations. Armed, cowboy vigilante cop wannabees like Zimmerman get to put themselves in confrontational situations then pull out the concealed firearm to defend themselves. Would Trayvon Martin be alive if Zimmerman wasn't armed? Of course. Heck, Zimmerman never would have gotten out of his car. Was Zimmerman motivated by racial animus? Probably. And so was his victim. 

     They both saw an enemy in the others face. One pursued. Neither retreated so one is dead. 

     Blame stand your ground.

DUI IN A GOLF CART

     I love the idea of legal golf carts as transportation around the quaint villages of Ozona and Crystal Beach and neighboring Palm Harbor: especially the tricked out ones during the holidays - lights, tinsel, disco balls, music. I’ve even seen grade schoolers learning how to drive on ‘em. Roll up to the convenience store, the bank drive-through with your canine wing man by your side, down to your neighbors for a party, cruise out for dinner & music. Oops. Watch out if you’re impaired.

     As a criminal defense attorney living and working in this area, I wonder if folks know the legal dangers. Under Florida law, a golf cart counts as a “motor vehicle” to qualify for a DUI- “…any… vehicle operated on the roads of this state, used to transport persons or property, and propelled by power other than muscular power…”. A separate definition for golf cart spells it out: “ ‘Golf cart’ means a motor vehicle that is designed and manufactured for operation on a golf course for sporting or recreational purposes and that is not capable of exceeding speeds of 20 miles per hour”. Florida Statute §320.01.

     So enjoy our unique and wonderful corner of Pinellas County. But get a designated “caddy” to drive if you’re impaired.

MONEY TALKS - Getting off Probation

     Clients often complain that the criminal justice system serves as nothing more than a money making collection machine - particularly onerous for those who find themselves in trouble that began with a financial squeeze. Can't pay fines on time?  Now add a late fee; and now your license is suspended and you have to pay a reinstatement fee, etc. Here comes a driving with license suspended charge. Now more expenses and fines. Then there are the costs of probation supervision. Add the surcharge of 4% for making payments over time. And on and on....

     If you want to get off probation without violations, especially early, you better put out all your financial fires: pay all costs, fines and restitution if that applies. Ask the court to do community service in lieu of payments if you have more time than money. You must satisfy financial obligations for ALL of your cases, even old ones that are closed to get off probation early! They say debtor's prison is a thing of the past. Yet probationers get violated every day for missed financial obligations. Fines and costs are unrealistically high, plus paying for costs of investigation and prosecution. Isn't that what the basic fines and costs are for?! Quite a way to try and generate sufficient revenue to run the criminal justice system - on the backs of the accused.

DUI DEFENSES

     As mentioned in a recent blog entry, someone may find themselves in an emergency situation that forces them to drive. That is the defense of Necessity. That reminds me of three other seldom seen but viable defense to DUI: Involuntary Intoxication, Entrapment and Duress.

      Involuntary Intoxication involves committing a crime after properly taking your prescribed medication (not alcohol or street drugs) and having an unanticipated adverse reaction that interfered with your law abiding intent. Now DUI is a general intent crime, that is, unlike most offenses where the state must prove you specifically intended to commit unlawful acts, you do not need to intend to drive impaired to be guilty of DUI. Still, I can see the application of this defense in certain circumstances. Certainly, if the adverse reaction and prescription can be documented, most prosecutors will have an open mind to consider a reduction of the DUI to a lesser offense. By the way, if you are driving impaired due to ingestion of something other than alcohol or a controlled substance, its not DUI.

     What about Entrapment? Typically, this is where an agent of the police (undercover cop, snitch) induces someone to commit a crime they otherwise would not be inclined to commit. It is a subjective matter for the jury to decide to cancel out criminal intent. The cop who waits for you to leave the bar and drive off has not committed entrapment. But one who tells you to get in your car and leave probably has done so. It will be a strange case indeed but not unheard of.

       Then there is Duress, being forced to drive due to a threat of harm. One can imagine a bad guy forcing the driver to drive the getaway car.  Also driving to flee a confrontation can arise. This is a particular kind of emergency. These situations do happen. 

     For these last two defenses, a plausible presentation at trial is key. Often, the authorities have some involvement so independent proof exists to verify the dilemma.

Gun "Control" or "Regulation"

        "Control" or "Regulation": words matter in this contentious debate. The Second Amendment succinctly, if not a bit cryptically reads: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." [Memo to anti-government conspiracy types: a "militia" aids and assists the government in the absence of a standing army, not exists to oppose it, that's treason.] So regulation it is!

       The Supreme Court confirmed the right to bear arms as a Constitutional Right, but subject to reasonable regulation. America holds just 5% of the world's population but is awash in 40% of its firearms, much of it unregulated. Just as freedom to travel is modified by reasonable laws concerning vehicle ownership and use, surely stringent and meaningful laws to ensure such inherently lethal objects as firearms are possessed and used as safely as possible is constitutional. Let's face it - assault rifles do not effectively serve for self-defense or hunting. Banning military style guns and ammo will cut down on the threat of mass violence and risk to law enforcement. Regulation of all gun sales with mandatory background checks is a must along with a comprehensive national registry. Not every nut will be thwarted from causing gun violence, but this approach will greatly improve the situation. Such gun restrictions do work in countries where they are in place.

       Florida has strict punishment for those who possess, fire, wound or kill others during the commission of a crime. That carries minimum mandatory yearly prison terms of 10-20-25-life and 3 year minimum mandatory prison sentences for felons in possession of firearms or ammo. But that is after the fact of harm caused but the use of firearms. So still waiting for meaningful gun regulation for this civilized society....

AVOIDING UNWANTED POLICE CONTACT

     Two teenagers of color from a disadvantaged neighborhood sought my advice in how to respond to what they saw as police harassment: describing their most recent encounter as being "grabbed" and frisked against their will while walking in their neighborhood. What can you do to safely avoid unwanted contact with the authorities?

     You have the right merely to walk the other way if there is no good reason to engage you. Avoid doing anything that gives rise to "reasonable suspicion" when there was none to begin with such as appearing to throw something away, running, or reaching into a pocket although none of those things are illegal. If an officer insists on making contact, do not do anything that can be considered a threat. Show your hands. Politely insist you do not give your consent to this encounter, do not wish to make any statements and want your lawyer. 

     If the police have reasonable suspicion you are about to commit, are committing or just committed a crime, they can justify a "Terry" (v. Ohio) stop: a brief detention to speak with you and pat you down for weapons. If anything illegal is discovered and you are arrested, you will have your day in court to challenge the police conduct as an invasion of privacy and freedom.

     At the same time, gather information in the neighborhood of other similar cases of unwarranted contacts and file a complaint as a group and protest to the department and municipality. Good police work is one thing. Harassment is another.

DUI: DRIVING IMPAIRED & EMERGENCIES

     My last blog entry explored the issue of actual physical control of a vehicle while impaired: the situation of pulling off the road when you feel you shouldn't drive. You still may be in violation of the law if you are in a position to operate your vehicle. It can be an emergency of sorts when you don't feel you can drive. What about a true emergency that compels you to drive in the first place?

     Take the recent case of an unfortunate friend in New York. He settled in at home to ride out Hurricane Sandy and consumed several drinks. He then received a call that his elderly, invalid mother had no food or power and her aid did not show up. Rightly perceiving an emergency, he braved the elements to get provisions to bring her a meal and generally to provide help. But feeling the effects of alcohol, my friend pulled over. The car remained running. A trooper soon pulled up behind him. Result? Arrested for DUI - actual physical control. 

     Valid emergency? Did he have an alternative? One hopes upon proof of these circumstances, the prosecutor will reduce the charge. The case is pending....

Abandoning a Crime, Criminal Intent & DUI

    Tampa Bay Bucs defensive lineman Da'Quan Bowers' recent arrest  for handgun possession at a N.Y.C. airport raises the question: when is a criminal act abandoned and the suspect no longer in jeopardy of arrest? Preparing for a return flight home, Bowers apparently tried to present his handgun at the airport for safe transport  before he went through security to board. Although properly registered and permitted in his home state, such possession violated strict N.Y. gun laws and he unwittingly brought it with him. Aside from other alternatives to deal with the gun and where all this falls on the stupidity scale, this young man clearly sought to avoid committing a criminal act or at least abandon one he was committing. The N.Y. law may be one of "strict liability", that is, the knowing possession itself is a crime even if you didn't intent to violate the law.

     Florida's DUI laws share some parallels with this scenario. I have handled many cases where a client gets in his or her car after consuming alcohol or medication, only to realize they feel impaired at some point. What happens next greatly affects the outcome with the police. Depending when that "uh oh" moment arrives, some simply sit in the driver's seat. Others have the key in their hand or have put it in the ignition. Next is starting the vehicle or actually driving off. Once having driven off, many pull over. Do they then put it in park, turn off the engine, put the keys away? Have they only  attempted a DUI or have they abandoned a completed DUI? Do any of these actions matter or have they violated the DUI law?

      In the Sunshine State, you may be guilty of DUI not just for driving while impaired due to alcohol or controlled substances, but also if you are in "actual physical control" of the vehicle. What does that mean? You may insist, "I didn't mean to drive impaired!" DUI laws do not require specific intent to commit this crime. So even if your actions show an intent not to operate that vehicle, like Bower's hapless handgun dilemma, just being in possession of an operable vehicle in a position to drive may be enough to run afoul of this law. Efforts not to drive may play well with a jury, minimize your punishment or even convince the prosecutor to reduce the charge, but if you put yourself in a position to drive, that is actual physical control.

      So what to do? When you've made the decision not to drive, if you are driving, pull over as soon as you safely can do so in a legal spot, turn off the car, put the keys where you can't reach them easily (out the window, in the glove box or the trunk for example but not in your pocket) and get into the back seat. This last piece is particularly important for vehicles with push button starters where the key fob need only be in the vicinity of the vehicle to start it. Once you've done this, it will be a stretch for an officer to make a DUI arrest if you were not seen driving. And finally, if you have a phone, call for a ride or taxi.

Direct Contempt of Court - Emotions Run High

       Something offensive done in front of a judge can constitute criminal contempt. The judge decides right then and there whether to make a finding of contempt and what penalty to impose, which can include up to 180 days county jail. It doesn't happen often, but I was reminded how criminal contempt scenarios do arise, especially during criminal court proceedings where emotions run high.

     The other day, a colleague related a criminal contempt scene he came upon in front of a particularly tough judge. He just left a courtroom when a woman from the gallery ran out, cursing and slamming the door, with bailiffs in hot pursuit. She was none too happy with a sentence imposed on her boyfriend. They pulled her back in to face the judge. 

     My friend, having seen another attorney in a similar situation many years ago rush to someone's defense, seized the opportunity to hurry back in, stand beside her at the podium and announce "I am her lawyer". After a few momements of harried whispering between them and calming her (and the judge) down, an apology came forth to the judge and all was well. Moral? Don't vent until you've left the building.

Internet Incrimination - Telling on Yourself

What's with the need to post information and images on social networking sites that at the least prove embarrassing and at worst expose you to criminal prosecution?!

I recently defended a case where the client, a convicted felon, posted a picture on My Space that appeared to show him displaying an automatic firearm. If true, that's a three year minimum mandatory prison offense. While the picture alone may not suffice to convict, police follow up to obtain an incriminating statement could seal the deal. ("I just posed with it".) Likewise that party picture with a drink? Whoops, you're underage. Going on about an inappropriate exploit? Why? Political rants that could be construed as a specific threat? Again, why? Stow the ego.

"Sexting"? Are you crazy? We're talking about serious L&L charges or worse when you send images with sexual content, especially if you created them and they go to someone underage or are of someone underage.

On probation and sending posts that look like you're not where you should be? Probation officers also check out these sites.

You can compromise yourself in other areas such as family law. I defended a young man in a domestic violence injunction case where his volatile girlfriend posted all kinds of inflammatory comments on her page revealing emotional instability as well as bad motive in filing for the injunction to seek revenge rather than as a legitimate need for court protection. That also didn't play well for her as these two moved on to resolve child custody issues. One judge told me of a father who essentially used his young son as "bait" in postings to get dates during a divorce. How do you think that worked out when it came time to determine child visitation?

What about insurance companies checking up on "injured" claimants? Think again before posting pictures and bragging about just returning from your exotic ecotourism trip or even frolicking with your pet. Postings can come back to haunt you during employment searches too. More and more, background checks include social networking sites. Think twice before bad mouthing your boss, posing as a slacker or just acting politically incorrect on-line. The list of dangers goes on and on.

And a special word of caution for kids. Never post full personal ID, (no year of birth), schedule, locations (school, extracurricular activities, parties, general whereabouts, etc.) or that you're someplace alone. Duh! That invites the worst kind of trouble.

Most of these sites virtually are public. Find someplace else to vent, boast or act the fool and watch who you "friend" as well as what you post.

Are you an Accomplice if you Don't Stop or Report a Crime?

As any parent and former teenager knows, there's lots of peer pressure to participate in behavior that pushes them to the edge of legality. And kids see plenty of misconduct. But when someone does not actually commit the crime, can he or she still be criminally responsible?
It depends.

In Florida the old accomplice "aiding and abetting" concept is called "principal in the first degree". To aid and abet as a "principal" means to help the perpetrator, or person who actually committed the crime, by doing or saying something that caused it or encouraged, incited or assisted the perpetrator. Before a defendant may be convicted as an aider and abettor, the state must prove beyond a reasonable doubt not only that the defendant assisted the perpetrator but that the defendant had the specific intent to participate in that crime. A principal is subject to the same punishment as the perpetrator. Pretty harsh.

As an experienced criminal defense attorney and former prosecutor, I was asked my opinion by Bay News 9 today about a recent high profile case where several teens observed but did not report locker room assaults by some other teammates. While their inaction is reprehensible, there is no duty to report or stop a crime. If they did not join in or facilitate the crime, they merely are witnesses. What if they cheered the perpetrators on? Does that suffice as encouragement under this law? Not likely. How about if they "put them up to it"? That's closer to the technical definition. What if they were look outs or helped plan the attack? Most definitely.

The moral? Kids should always choose their friends carefully. When you hang with those who test the limits, when things go south they go south in a hurry and it may not take much to become a principal.

See the video at:

http://www.youtube.com/watch?v=O1XpFRpuq3o

Read the story at:

http://www.baynews9.com/content/36/2009/8/12/507720.html?title=New+investigation+sought+in+school+rape+case

High Court Limits Police Vehicle Searches

For almost 30 years, as an exception to the 4th Amendment's warrant requirement to permit a search and seizure, courts allowed police routinely to search the inside of a vehicle, including trunks, glove boxes, consoles and containers, upon the arrest of someone who just had been inside it ("incident to the lawful arrest of a recent occupant"). The mobility of the vehicle and presumed ability of a driver or passenger to hide or destroy evidence of a crime served as the justification to empower law enforcement with such broad intrusion into a citizen's constitutional protection of privacy and against unreasonable searches. That never made sense to me in the usual case where the vehicle's occupant is removed and unable to access it. Well, no more!

The United States Supreme Court ruled this week in Arizona v. Gant, that once someone is arrested and secured out of the vehicle, there is no logic to justify a full vehicle search in the name of preventing the loss or destruction of evidence. The Court allowed an exception where the police reasonably believe evidence related to the crime for which the person was arrested is in the vehicle. So in Gant's case, after an arrest for a traffic offense, police wrongly searched his jacket on the back seat of his vehicle where they found illegal drugs.

Watch to see whether police modify their procedures to allow someone to remain in a vehicle to create the "need" to conduct a sweeping search of its interior....

Of course, other exceptions to the "warrant requirement" still apply: police may search 1) with consent of the person who controls the vehicle, 2) if they see contraband in "plain view", 3) to inventory the vehicle's contents prior to impounding it and 4) in emergencies called "exigent circumstances" typically involving weapons or seeing "furtive", i.e. unusual, movements within the vehicle that signal possible danger or destruction or hiding of evidence. These exceptions have their own bodies of case law and are subject to much interpretation.