Zimmerman trial -- the voice recognition hearing goes on

I know everybody is waiting for the evidence presentation in the Zimmerman case, and of course, we're still in the beginning stages of jury selection -- and therefore I have not really commented, because only the actual "evidence" is what will really count  -- but I just got done watching the continuation of the hearing on the admissibility of the voice recognition evidence (and it's 8:30 p.m. on a Monday evening) -- and as an experienced trial lawyer I'm wondering how the hell the defense lawyers are supposed to be prepared for a trial when this critical area of evidence isn't even decided!

Now . . .  first let me admit I'm a very prejudiced guy when it comes to voice identification.  I don't really trust it.  I don't really like it.  I think that a large part of it is junk science.  However, in this case -- I don't trust it at all.  I think it's pure hogwash.  The methodology used to make the identification here was garbage, and anyone with any ounce of common sense should be able to see that.  But . . . that's me speaking as a person who doesn't like it -- even in the best of circumstances.

However . . .  here's my real bitch and moan:  Why are we doing this in the middle of the trial???

The lawyers should be concentrating on the case, not a preliminary evidence question  -- they should know what's coming in and not coming in BEFORE they start jury selection!  They should be able to plan their defense,  give full concentration to jury selection,  and already know what they'll say in their opening statements, and have their trial strategy down pat.  Having this EXTENSIVE, complicated hearing in the middle of a trial is NUTS!!!!   The judge had no business denying the defense a continuance,  and no business having this hearing mid-trial.

So -- for whatever it's worth -- I'm not a real happy guy, right now,  other than I thank God every night that I didn't get this case -- because it's a true nightmare!   I think Don West and Mark O'Mara, and their team are amazing.  I don't know how the hell they can do it -- because it's overwhelming!  The whole damn thing has so many political and racial overtones that it's blown the case proportionally off the map!  At some point, probably at least a few years from now -- folks are gonna analyze this case calmly -- and be appalled at some of the shortcomings it will reveal.  However -- that's the follow-up story several months from now.

In the meantime -- I'd like to thank everyone who emailed me after the last posting.  You probably noticed I was feeling a bit down -- and those of you who emailed me really DID help make me aware that I'm not just wasting my time writing.

regards,
jon

Unlawful restraint by private security officers

Unlawful restraint by private security officers -- and its affect on self defense
copyright 2013 by jon gutmacher

In the recent case of Spurgeon v. State,  38 Fla. L. Weekly D1198  (Fla. 5DCA 2013), the Fifth District Court of Appeal,  had a very interesting case from the standpoint of how would the defense of self-defense apply to an unlawful restraint of an individual by private security officers.   Before I proceed, however,  I must warn you that this decision would not apply in the same way to restraint by actual law enforcement officers -- as you can "resist" the unlawful actions of a law enforcement officer only when done without "violence", and in many instances it doesn't take much to cross that very thin line.  But,  that's another story that I'm not covering it here.   So -- let's just stick to the issue, and  take a look at this case.  Here goes:

Mr. Spurgeon voluntarily admitted himself to a hospital  but because of extreme intoxication and aggressive behavior was restrained by security personnel employed by the hospital.  When he finally calmed down, he attempted to leave the hospital -- but was stopped by the security guards because a doctor had put a "medical hold" on him.  His attempt to leave resulted in the security guards actually grabbing him, and holding him down.  In this setting Mr. Spurgeon physically resisted, and spat on one of the guards.  Because of this he was arrested, and charged with the felony of "battery on a medical care provider" pursuant to F.S. 784.07.   And in case you're wondering -- yes -- a hospital security guard does fall within the ambient of that definition if acting in the performance of their duties.

Anyway --  Mr. Spurgeon's attorney,  being on the very sharp side,  argued (among other defenses) that his client was entitled to an instruction on the use of non-deadly force in self-defense.  The trial judge denied the instruction, and the jury found Mr. Spurgeon guilty.   Hence the appeal.

So . . .  the case hits the Fifth District Court of Appeal  . . . and while the appellate judges didn't decide that Spurgeon was entitled to use self defense as a  matter of law -- they did say it was a "jury question", and that  the failure to give the instruction required a reversal.   (there was also another reason not pertinent to this article).  While that leaves a lot to be desired in guidance as to what the actual legal issues might be on the self defense issue -- it still makes one thing crystal clear:   An individual being unlawfully restrained by private security personnel has a right to use at least some form of non-deadly force to escape and alleviate the unlawful restraint.  And -- on the flip side of that same coin:  The unlawful restraint of an individual by private security personnel could possibly result in civil or criminal liability to the security personnel involved.

From a personal standpoint -- my guess (emphasize "guess") is that an appellate court would look to the reasonableness of the actions of the security personnel from a standpoint of:  "Would their failure to restrain the individual create a substantial risk of serious and immediate harm to the individual,  or substantial, serious, and imminent risk of unreasonable harm to others or valuable property (ie:  imminent breach of the peace).  The less the risk and imminence -- the more chance of criminal and civil liability.

However,  what's important to you and me -- from the standpoint of all the trespass b.s. that happens in this State at retail stores,  restaurants, theme parks, etc.  -- is the issue of what happens when you're told to leave a place (for whatever reason) -- and instead of letting you leave -- they insist on first getting information from you for a "trespass warning"?

Well . . .  if the Spurgeon case means anything -- it means that unless you've committed a crime, or otherwise refused to leave (which now elevates it to an actual "trespass") (or want to argue about it) -- you should be able to politely tell them to go to hell -- and just leave without providing any details.  Otherwise -- all they're trying to do is unlawfully restrain you -- and in theory (emphasize "theory") -- you now have a right to use lawful self defense to get out of there.   Of course,  if they're ignorant or aggressive -- they may beat the shit out of you, and then make-up all sorts of b.s. as to what actually happened  (when I handled civil cases I saw this all the time) -- but legally -- you da man!

So . . .  now you know why I think the Spurgeon case is important -- and hopefully you have a little bit more insight on the law, and how it actually works.   Anything is possible!

Anyway,  I hope you found this article entertaining.  If you did, and actually liked it -- feel free to say so.  The lack of reader feedback on this site is truly dismal.  Sometimes I wonder if I'm just standing here alone in a vacuum, banging my head against the proverbial wall.

jon gutmacher

Zimmerman trial -- preliminary thoughts

The Zimmerman trial  begins Monday,  June 10th,  with jury selection.   I will be reporting on my impressions of the trial throughout -- and will keep you informed.  For now,  I'm keeping my thoughts mostly to myself until the actual trial begins.  Posts should be on a daily basis,  although I will not begin in depth coverage until jury selection is concluded.

Florida appellate court holds that Stand Your Ground statutes are independent of each other

On April 10, 2013,  the Second District Court of Appeal decided the case of Little v. State, 38 Fla. L. Weekly D790 (Fla. 2DCA 2013), exactly per the  reasoning  of my much earlier 9/12/12 blog article that discussed some very important issues on conflicts regarding the "retreat rule".   The Little case fully supported my earlier arguments.  

To understand . . . in the Little case, a convicted felon carrying a firearm was forced to use a firearm to defend his life.  The circumstances were clear -- and "but for" being a convicted felon -- there was no real question that he had no other choice but to use the firearm if he were to save his life.   The trial court denied his  "Stand Your Ground"  motion -- with the State arguing that because he was unlawfully carrying a gun, he was precluded from having immunity under 776.013.  The Second District rejected this argument, and stated that since Mr. Little did not seek immunity under 776.013 -- but instead,  had sought it under 776.012 -- he was still entitled to immunity if he reasonably believed the use of deadly force "was necessary to prevent  death or great bodily harm".   The appellate court then held his use of self defense was lawful, and that he was absolutely entitled to immunity under section 776.012.   A GREAT decision!

The District Court of Appeals also "certified" its decision to the Florida Supreme Court because it felt there was a possible conflict with the decision in State v. Hill, supra (fully discussed in my earlier blog article), that was important enough that the Florida Supreme Court needed to resolve it. 

So . . .  it looks like my record in the book and this blog on appellate court predictions is still ten for ten.  I'll keep trying to do my best -- keeping you up-to-date on the law.

A lesson on how important it is to carry with your CWP

Wanna know why you should be carrying your firearm with a CWP?

Wanna know why the anti-gunners are idiots???

Read the article:

http://www.abc4.com/content/news/top_stories/story/conceal-and-carry-stabbing-salt-lake-city-smiths/NDNrL1gxeE2rsRhrWCM9dQ.cspx

Can you open carry in a vehicle per 790.25?

There has been some controversy whether the exceptions in Florida Statute 790.25(3) allow "open carry" in a vehicle or conveyance in certain instances such as:  (h) fishing, hunting, camping;  (i) to and fro lawful target practice;  etc.

The argument against open carry is that Florida Statute 790.25(5) controls the other subsections -- such that any travel in a vehicle or conveyance must have the firearm "securely encased".   Since there is no appellate court opinion on this issue, and it involves a good faith debate -- it is somewhat of a "test case" problem.

Personally,  I feel that the law supporting "open carry" is overwhelmingly allowed in such situations -- as the purpose of the statute was not to prohibit any lawful use of firearms, but to clarify there were certain instances where there was a tradition, or common sense understanding that "open carry" was usual, which the statute was merely codifying.  Any other reading of the statute seems to throw its entirety into conflict.  (ie:  if fishing off a boat -- you couldn't have a knife or firearm exposed; an armed security guard would have to "securely encase" his firearm when inside an armored car; a law enforcement officer in a private vehicle would have to securely encase his or her firearm; etc.)

I have lots of other reasons -- both legal, and factual to support the argument.  However -- as I've said -- this question is having some controversy, and therefore I would suggest caution -- until the  issue is resolved by an appellate court.

How important is the firearms industry to the U.S. economy???

Hey,  President Obama, and all you dumb anti-gunners -- watch this short and amazing video before you try screwing with the firearms industry!   If you want proof of how important the firearms industry is to this country's economic growth -- all you need is two minutes of watching.   Really excellent video!  Every gun owner should take notes!

http://www.onlinemba.com/blog/business-of-guns