Thursday, April 12, 2012

Zimmerman, Probable Cause, and F.S. 776.032(2)

Yesterday George Zimmerman was charged and arrested by Florida law enforcement on suspicion of second degree murder of Trayvon Martin.  The facts of the case, publicly known as of this date, are widely published on the Internet and the reader can seek these elsewhere.  For purposes here, it is enough to say that Zimmerman shot and killed Martin, and upon questioning by law enforcement, asserted that he acted in lawful self defense.  Here we address the legality of his arrest under section 776.032(2), Florida Statutes.  That statute states:
776.032 Immunity from criminal prosecution and civil action for justifiable use of force.—
(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

Originally, several days after the shooting, local authorities announced that there was no probable cause to arrest Zimmerman.  Roughly 45 days later, an arrest was made, suggesting that either new evidence was discovered, or a re-examination of evidence suggested probable cause existed that Zimmerman's use of force was unlawful.

So what exactly is "probable cause?"  It seems that much of the public feels that probable cause for an unlawful use of force is present any time deadly force is used against an unarmed person.  In the Zimmerman/Martin case, advocates of this position are quick to quip that Martin was "armed" only with candy and soda.  These folks seem to think that although it is not impossible that an unarmed person can reasonably cause another person to fear for great bodily harm, such an event is facially improbable.  Are they right?

There is other publicly known evidence in the case, such as:

1. the statements made by Zimmerman, who is, as far as I have read, the only eye-witness to the shooting.
2. photographs and witness testimony as to Zimmerman's appearance and demeanor immediately following the incident.
3. witnesses who heard events unfold, including neighbors and Martin's girlfriend by telephone.

So putting it all together, how does one determine whether there is "probable cause" under 776.032(2)?

It seems most courts today rely on a standard similar to that in a Supreme Court ruling, Maryland v. Pringle, 540 U.S. 366, 370-71 (2003), which stated:
The long-prevailing standard of probable cause protects “citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime,” while giving “fair leeway for enforcing the law in the community's protection.” On many occasions, we have reiterated that the probable-cause standard is a “ ‘practical, nontechnical conception’ ” that deals with “ ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ ”  “[P]robable cause is a fluid  concept-turning on the assessment of probabilities in particular factual contexts-not readily, or even usefully, reduced to a neat set of legal rules.”  The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances.  We have stated, however, that “[t]he substance of all the definitions of probable cause is a reasonable ground for belief of guilt,” (internal quotation marks and citations omitted), and that the belief of guilt must be particularized with respect to the person to be searched or seized, . In Illinois v. Gates, we noted:“As early as Locke v. United States, 7 Cranch 339, 348, 3 L.Ed. 364 (1813), Chief Justice Marshall observed, in a closely related context: ‘[T]he term “probable cause,” according to its usual acceptation, means less than evidence which would justify condemnation .... It imports a seizure made under circumstances which warrant suspicion.’ More recently, we said that ‘the quanta ... of proof’ appropriate in ordinary judicial proceedings are inapplicable to the decision to issue a warrant.  Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the [probable-cause] decision.”  To determine whether an officer had probable cause to arrest an individual, we examine the events leading up to the arrest, and then decide “whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to” probable cause.
In short, "probable cause" is a "fluid" concept, but boils down to a "reasonable ground for belief of guilt," and "guilt" means something far less than guilt beyond a reasonable doubt.

From the known facts at this time, there are certainly, in my opinion, reasonable doubts regarding Zimmerman's guilt.  He claims he acted in self-defense after, without provocation, Martin punched him in the face, knocked him to the ground and began slamming Zimmerman's head into pavement.  The police report regarding Zimmerman's wounds and witness reports of his cries for help seem to collaborate the story.  It may not be the truth, but there is enough evidence, in my mind, to create doubt that Zimmerman's defense was not lawful and was instead a murder.

But, would it be unreasonable to think Zimmerman might not have been acting in lawful self defense?  His victim was unarmed, and although Martin was an athletic football player, there was not a great size disparity between him and Zimmerman.  There also seems to be some dispute among witnesses as to whose voice was crying for help during the altercation, Zimmerman or Martin.  There is also some circumstantial evidence that Zimmerman may have provoked a confrontation.  All these facts may not be enough to convict Zimmerman (i.e. guilt beyond reasonable doubt), but do they create a "reasonable ground for belief of guilt"?  Put another way, is it unreasonable to believe Zimmerman might have acted unlawfully?

Unfortunately, it could be a long time before we know all of the facts and circumstances that were presented to whoever made the probable cause determination.  I suspect, like many, that proof beyond a reasonable doubt has yet to be established, but Zimmerman's arrest will likely be held valid (if challenged) on grounds that probable cause was present.

Tuesday, April 3, 2012

Admissibility of "hollow points" in a criminal case and the decison by civilians to carry them.

Fact or Urban Myth?
I've heard and read gun owners suggest that in the aftermath of a self-defense shooting scenario, one should expect the state to try to convince a jury that the defendant's use of hollow point ammunition will be used against him.  The thinking goes that a prosecutor will say something like this, "You see ladies and gentlemen of the jury, Mr. Defendant was so eager to kill someone, that he made sure his gun was loaded with special bullets designed to rip and tear flesh...he wanted bullets with more killing power than the bullets Uncle Sam issues to soldiers!" etc. etc.  I decided to informally investigate whether this was true, or simply an urban myth.

Most gun owners find this idea offensive, for at least two reasons.  The first argument is that simply choosing the most effective ammunition is not indicative of a violent character, any more than putting premium gasoline in a car suggests the driver is prone to speeding.  The second argument is that most gun owners believe that hollow point bullets are safer and more socially responsible than target bullets ("ball" ammunition) because the very same attributes that create larger wound channels in flesh also significantly reduce the bullet's ability to create dangerous ricochets, or to penetrate walls or bad guys and hit someone behind them.

I leave it to the reader to educate herself elsewhere on the definition and varying types of "hollow point" ammunition, including "safety slugs", frangible bullets, and other designs, and the arguments for and against such bullets in civilian use versus "ball" or "full metal jacket" ammunition.  Clicking on the  links provided will bring up the definition and some of the arguments for those unfamiliar.  An interested reader can also visit a local gun store, and receive an earful on the issue, and also observe that most new gun owners are instructed by sales staff to practice with ball, but load hollow points for self-defense scenarios (ball is roughly has the cost of hollow point ammunition and makes no difference when target shooting).

Balancing of Relevance Against Prejudice
First, I should address some practicalities of a criminal case.  Generally speaking, criminal defense lawyers would prefer their client, even an innocent client, not testify.  The thinking is that too much can go wrong, and that it is better to poke holes in the state's case such that the jury is convinced that the state cannot prove guilt beyond a reasonable doubt.  Thus, as a practical matter, the defensive gun user is likely to choose not to testify as to the reasoning behind a particular ammunition choice.

That said, a defense lawyer will seek to exclude the type of ammunition involved in a self-defense shooting from evidence.  Generally speaking, if evidence proffered by a party in a case is relevant, it is admissible unless there is a rule prohibiting the use of such evidence.  The standard for relevance is broad and liberal.  The Federal Rules of Evidence, which serve as the basis for many state rules of evidence, provides:
Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
Thus, in the face of a prosecutor attempting to introduce facts surrounding the type of ammunition used in a shooting, defense counsel will typically attempt to argue that the such information is of no or minimal relevance, and is outweighed by the potential prejudice to the defendant.  The argument might be that the jurors have potential prejudices and biases towards "hollow points", or that if they hear the effect hollow points have on flesh they will be biased towards the defendant or improperly impute a violent character to him, so on and so forth.  The judge will then decide whether the prejudice outweighs the probative value, and either allow or exclude the evidence.

So my task was to find cases mentioning the term "hollow point," using a computer search, and read them and determine how judges are handling these objections.  Let me point out a major problem with this approach.  Generally speaking, only appellate cases become published.  That means that if nobody appeals the case, there is no practical way (given the current state of trial court transcript availability) to know a ruling on the issue ever occurred.  And there are many, many, many reasons why criminal cases do not get appealed.  Another problem is that my search produced a very small sample size, putting into question the reliability of any conclusions that might be drawn.

Generally speaking, courts tend to find that the relevance of hollow point ammunition used in a shooting outweighs potential prejudice.

Drug Cases
Sometimes accused drug trafficking are charged with using a firearm in connection or in furtherance of their alleged trafficking, i.e. to protect the merchandise. Defense attorneys have tried to exclude the firearm's being loaded with hollow points as irrelevant and prejudicial, presumably the reasoning being that a jury will be offended by the use of hollow points, assume the defendant is a bad person or a criminal, and therefore he must also be a drug dealer as alleged by the state.  Several federal courts seem to side with the state that hollow points are relevant as tending to prove the alleged drug dealer loaded hollow points to defend his "stash" as opposed to "innocent use" such as target practice, and further, that the relevance outweighed potential prejudice.  This seems odd, as one would think that possession of a handgun speaks for itself in terms of purpose, i.e. self defense.  Naturally, if the jury is told the defendant was caught possessing a 9mm Glock and a kilo of cocaine in the same suitcase, they are more than capable of putting two and two together.  But consider as mall bag of marijuana found in a nightstand, and a firearm located in a closet.  There may be some question as to whether the person is a trafficker.  Thus, to the extent the type of ammunition might prejudice the jury (to think "oh, well if he loaded his gun with these nasty evil bullets, he must also be a drug dealer"), it would seem prudent to exclude that evidence, unless a defendant affirmatively asserts the gun was for target competition only, or makes some other excuse for its posession.  Not so:
United States v. Pugh, 175 Fed. Appx. 390, 393 (2d Cir. 2006)
Appellant's final claim with respect to his convictions is that the district court abused its discretion in permitting the government to elicit expert testimony from an ATF Special Agent about hollow-point bullets. The Special Agent testified that hollow point bullets are “designed to flatten on impact,” that they are “designed for defensive purposes,” and that they therefore “provide more protection” than an ordinary bullet. Appellant asserts that this testimony was both irrelevant and highly prejudicial. We disagree. We have already stated that where, as here, a gun was loaded with hollow point bullets, that fact “militate[s] against an inference of innocent use, such as target practice or hunting.” Lewter, 402 F.3d at 322 (discussing evidence supporting a jury's conclusion that the gun had been possessed in furtherance of a drug crime). Moreover, we see no danger that Appellant was unfairly prejudiced by the dry and technical language of the testimony elicited by the government.

United States v. Lewter, 402 F.3d 319, 322 (2d Cir. 2005)
Possession of a firearm to defend a drug stash clearly furthers the crime of possession with intent to distribute the contents of that stash. See United States v. Garner, 338 F.3d 78, 81 (1st Cir.2003) (“When guns and drugs are found together and a defendant has been convicted of possession with intent to distribute, the gun, whether kept for protection from robbery of drug-sale proceeds, or to enforce payment for drugs, may reasonably be considered to be possessed ‘in furtherance of’ an ongoing drug-trafficking crime.”); United States v. Suarez, 313 F.3d 1287, 1293 (11th Cir.2002) (where firearms were hidden throughout a stash house, “the jury could reasonably have inferred that the guns were to be used to protect the conspirators' investment in their shipment”).The evidence was sufficient to support the jury's verdict that Lewter possessed the gun to defend his drug stash. The firearm had an obliterated serial number and was loaded with hollow-point bullets-facts that militate against an inference of innocent use, such as target practice or hunting. Moreover, the gun was stored within feet of Lewter's drug stash and within Lewter's reach. See Finley, 245 F.3d at 202-03 (affirming conviction under § 924(c)(1) where unloaded shotgun was stored under pile of clothes in the room from which drugs were sold); see also Wahl, 290 F.3d at 376-77 (affirming conviction under § 924(c)(1) where loaded gun was within defendant's reach and in close proximity to defendant's drug stash).
United States v. Fort, 25 F.3d 1041 (4th Cir. 1994)
The prosecution had to prove beyond a reasonable doubt that the defendants possessed firearms and used them in connection with their drug trafficking and not for some innocent purpose, such as, target practice, bird hunting, clay pigeons, etc. Hollow-point ammunition is not used for target shooting or hunting. It is designed, manufactured and used to produce the greatest damage to the human victim. See United States v. Bayko, 774 F.2d 516, 521 (1st Cir.1985) (“the possession of a firearm partially loaded with bullets[hollow-nosed] designed to maim or kill by one with the defendant's background is by itself ‘clear and convincing’ evidence of dangerousness.”).
*4 Firearms are a tool of the illegal drug trade. These weapons are possessed not for sport, but are used to protect the drug dealers, their illegal drugs, and their ill-gained currency from other criminals and law enforcement officers. The record is filled with testimony about defendants' desire to acquire firearms and instructing their salesmen to trade drugs for firearms when possible. When a person loads a revolver with hollow-point ammunition, he may expect this fact to be used against him, if he possesses or uses the weapon for some illegal purpose. If the stolen shotgun had been loaded with buckshot rather than birdshot, this would have been admissible because buckshot is more effective against humans than birdshot.

United States v. Newton, 31 F.3d 611, 613 (8th Cir. 1994)
The evidence in the present case showed that a loaded AR–15 semiautomatic rifle was found behind the door leading to appellant's bedroom, and a loaded .38–special revolver and a loaded .22 caliber revolver were found inside a dresser drawer in the same bedroom. These weapons were found in the same room in which the methamphetamine was discovered. Two of these weapons were loaded with hollow point ammunition that is designed for self defense and antipersonal use, rather than target practice. This was sufficient evidence for the jury to conclude that the appellant used the firearms during and in relation to a drug trafficking offense.

United States v. Garza, 566 F.3d 1194, 1201 (10th Cir. 2009)
Mr. Garza's firearm was readily accessible, very near the drugs, and equipped in a manner suited for protection (that is, with loaded and chambered hollow-point bullets and a red-dot scope nearby).
Other Cases
One could argue that the drug cases are perhaps not informative, given the so-called "war on drugs" and the otherwise overwhelming evidence in the cases cited above.  However, this does not seem to be the case:

State v. Aguilar, 1 CA-CR 06-0035, 2009 WL 690598 (Ariz. Ct. App. 2009)
This asserted error is based on an apparent misreading of the record. The trial court did not order that evidence of hollow point bullets was inadmissible. It merely sustained Aguilar's objection to this evidence at one point because the subject exceeded the scope of cross-examination. Later the prosecutor asked another witness on direct examination about hollow point bullets. The evidence was relevant because the State had to prove premeditation, and Aguilar's defense was the absence of premeditation. Victim J.B. was killed with a hollow point bullet. Hollow point bullets like those used by Aguilar are designed to be more lethal than other bullets. Thus the evidence had some relevance to Aguilar's state of mind.

United States v. Leake, 396 Fed. Appx. 898, 901 (3d Cir. 2010) cert. denied, 131 S. Ct. 1541 (U.S. 2011)
Troy Leake appeals from a judgment of conviction and sentence entered by the United States District Court for the District of New Jersey following his conviction *899 for unlawful possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)
On June 2, 2009, Leake proceeded to trial. During the government's case-in-chief, Sergeant Ruane testified that one of the guns recovered from Leake on the night of his arrest was loaded with two hollow-point bullets. Leake's counsel objected to the line of questioning, arguing that “[i]t's not a relevant element of the case.” (JA at 173.) The District Court overruled the objection, stating “[r]elevance is as to the weapon. I'll allow it.” (Id.) Golpe also testified about the hollow-point bullets and explained the difference between hollow-point and bald-point bullets as follows: “Hollow point is designed to expand, or more commonly referred to in the media as the cop-killer bullets.” (JA at 219–20.) Leake's counsel objected and also moved for a mistrial based on Officer Golpe's testimony about “cop-killer bullets.” The District Court overruled the objection and declined to grant a mistrial. The Court offered to give the jury a curative instruction, but Leake's counsel declined the offer. On June 3, 2009, the jury returned a verdict of guilty.
Leake argues that the District Court erred in failing to grant a mistrial because “[t]he testimony about ‘cop killer’ bullets was so prejudicial a mistrial was required.” (Appellant's Op. Br. at 38.) We disagree. Officer Golpe's single statement that hollow-point bullets are “more commonly referred to in the media as the cop-killer bullets,” obviously does not amount to pronounced and persistent remarks, Lore, 430 F.3d at 207 (“a single statement by a witness ... hardly can be deemed pronounced and persistent”), and, as already noted, the record contains overwhelming evidence of Leake's guilt, including the eyewitness testimony of two police officers that Leake was carrying two firearms, which were both recovered during the arrest. In addition, the District Court offered to issue a curative instruction, which Leake declined. See United States v. Smith, 487 F.3d 618, 622 (8th Cir.2007) (holding that the district court did not abuse its discretion in denying the motion for a mistrial where the defendant had declined the district court's offer to give a curative instruction to the jury). Thus, in light of the strength of the other evidence presented at trial against Leake and the *905 District Court's offer to give a curative instruction, we cannot say that the District Court abused its discretion in declining to grant a mistrial based on Golpe's single statement that hollow-point bullets are more commonly known in the media as “cop-killer” bullets.

State v. L'Minggio, 71 Conn. App. 656, 658, 803 A.2d 408, 410 (Conn. App. Ct. 2002)
The defendant, Jason L'Minggio, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree with a firearm in violation of General Statutes § 53a–55a1 and carrying a pistol or revolver without a permit in violation of General Statutes § 29–35(a)
Finally, the defendant claims that the prosecutor, during her closing argument, committed prosecutorial misconduct that deprived him of a fair trial. We disagree.
13 The defendant's claim focuses on the prosecutor's references to the type of bullets that the defendant used in the shooting. During her closing argument, the prosecutor referred to the bullets as both “killer bullets”9 and “[f]lesh ripping, killer bullets.”10 The defendant *675 argues **420 that this description of the ammunition “was not supported by the testimony, has no scientific basis and was improperly intended to appeal to the jury's sympathies.” The defendant also argues the prosecutor's “language was excessive, inflammatory and unsupported.”11
It was undisputed at trial that the perpetrator of the shooting used a unique type of ammunition, namely, nine millimeter Federal Hydra Shok jacketed hollow point bullets. At trial, Harold Wayne Carver, a forensic pathologist and the chief medical examiner for the state of Connecticut, testified about the hollow point bullet that he recovered from Mayes' leg. Carver testified that this type of bullet is “a bullet in which the nose of the bullet is ... scooped out. It sort of has like a little dish in it. They are designed to change their shape to get bigger when they hit something. And the whole purpose of the bullets is to put energy into tissue and thereby destroy tissue.... [I]f the bullet is bigger, it touches more tissue and is more efficient at depositing its energy in the tissue. Therefore, it's supposed to do a better job.” Carver further explained that this variety of bullet is designed to do more damage by hurting more body tissue. **422 Edward Jachimowicz, an expert firearms and tool mark examiner who works in the forensic science laboratory for the state, also testified about the bullets used in the shooting. Jachimowicz testified that the bullets were “copper jacketed, hollow point. Inside the bullet, or, inside the cavity of the hollow point, there's a post. The design of the bullet is that when fluid, whether it's water or body fluids or whatever, but when a fluid gets into the nose of that bullet, the water pressure or the hydraulic pressure causes the nose of that bullet to mushroom. And the post then sticks out and basically steers the bullet on a truer, straighter path.”John Brunetti, a detective with the West Haven police department who investigated the shooting, also testified about the bullets used in the shooting. Brunetti testified  *679 that he observed a spent bullet in the ground and that it had “mushroomed.” He therefore suspected that it was a hollow point type bullet.1718 Having reviewed the testimony concerning the bullets used in the attack, we are unable to conclude that the prosecutor's remarks were unsupported by the evidence adduced at trial. The state's experts testified that the bullets were designed to expand when they entered the body so as to maximize their ability to destroy body tissue. The evidence further demonstrated that the bullets used in the shooting fulfilled that purpose. In light of that evidence, the prosecutor's remark that the bullets were “flesh ripping” was not inaccurate and, therefore, not inappropriate. Furthermore, the prosecutor's reference to the bullets as “killer bullets” was likewise not inaccurate. The evidence reflects that the use of hollow point bullets in the shooting caused Mayes' death. The prosecutor may comment on the evidence and on the reasonable inferences that the jurors might draw from such evidence. State v. Payne, 260 Conn. 446, 454, 797 A.2d 1088 (2002).13When viewed in isolation, the prosecutor's remarks might appear inflammatory or intended solely to arouse  *680 the passions of the jury. When viewed in context of the evidence adduced during trial, however, the remarks constituted fair and zealous comment on the evidence. Having concluded that the prosecutor's remarks did not rise to the level of prosecutorial misconduct, we have no need to consider whether they deprived the defendant of his right to a fair trial.

United States v. Bayko, 774 F.2d 516, 521 (1st Cir. 1985)
We turn first to the requirement that a defendant may not be released on bail if he or she poses a danger to the community or is likely to flee the jurisdiction.
We cannot agree with the district court's finding that Bayko was not a danger to the community. Upon appeal, the defendant has the burden of showing “by clear and convincing evidence” that he or she will not be a danger to the community, Fed.R.App.P. 9(c); 18 U.S.C.A. § 3143(b), even where it is the government which has taken the appeal. “The motion shall be determined upon such papers, affidavits, and portions of the record as the parties shall present....” Perhaps the most positive information about the defendant, the presentence report, was not included in the record upon appeal.7 Although it is by no means clear that having this report before us would have led us to a different conclusion, without the report we certainly cannot see “clear and convincing evidence” that the defendant will not pose a danger to the community, either by violent acts or criminal activity. The presentence report cannot explain away the fact that defendant armed himself with a .38 revolver, a deadly weapon that he made even more deadly by partially loading it with hollow-nosed bullets. The possession of a firearm partially loaded with bullets designed to maim or kill by one with defendant's background is by itself “clear and convincing” evidence of dangerousness.

Favorable Cases
I found only one, and arguably, it excluded evidence of the nature of the bullets used in the crime not because of potential prejudice, but rather because it was improperly proffered as opinion testimony from a lay (non-expert) witness:
Kolp v. State, 932 So. 2d 1283, 1283-84 (Fla. 4th DCA 2006)
In a trial on three counts of attempted second-degree murder with a firearm, the State produced evidence that defendant had fired his weapon three times at two men. Both men were called to testify about the event. In the testimony of one, the following ensued:Q. Yeah, tell the jury what you guys recovered.A. Recovered three empty casings, which were shot, and then I think it  *1284 was two more that were not shot, and they were hollow-points.Q. What does that mean?A. That means that the centers of them were carved out. Like, usually, hollow-points are for killing, you know? If you don't-[e.s.]At that point defense counsel objected to this unqualified witness being allowed to offer opinion evidence as to the use of hollow-point bullets, which the trial court overruled. Later in cross-examination, defense counsel asked the same witness the following:Q. You obviously have knowledge about firearms when you were describing the hollow-point bullets, right?A. I mean, who doesn't know about them. You watch movies, right?Even later in the trial, the State questioned defendant on cross-examination about hollow-point bullets as follows:Q. Okay. And you loaded this gun with hollow-point bullets.A. Yeah, hollow-points. They're hollow-points for a reason.Q. So, for what reason?A. The hollow-points are for a reason, and if I'm in my house and someone breaks in and I shoot somebody or I'm going to have to shoot somebody, I don't want a bullet to go through that person, through the wall, and kill my son in the other room.Q. Okay.A. That's what a hollow-point is for.Defendant was convicted of the three counts of attempted second-degree murder with a firearm as charged. On appeal the only issue is the admissibility of the testimony of the witness that hollow-point bullets are for killing.
Initially, we conclude that the testimony was not admissible under section 90.701, Florida Statutes (2005). In Fino v. Nodine, 646 So.2d 746 (Fla. 4th DCA 1994), we held that the kind of opinion testimony by lay witnesses admissible under section 90.701 is usually limited to things related to perception: e.g., “distance, time, size, weight, form and identity.” 646 So.2d at 748-49. The testimony about the purpose of hollow-point bullets is none of these things. The testimony is properly characterized as speculative. Allowing this testimony from the witness that the purpose of hollow-point bullets is only for killing was therefore error, but the issue is whether it prejudiced the outcome.
Thus, notwithstanding the outcome in Kolp, I am not sure the state could not have put on an expert witness to testify to the same thing thing as the lay witness did there.

Prosecutors' use of hollow points against defendants is not an urban myth.  I want to make it clear that I am not offering any advice on whether or not a civilian should carry hollow points.  In fact, I could imagine that even if one lawfully used a firearm in self defense and accidentally hit a bystander with a ricochet from ball ammunition, a clever plaintiff's lawyer could conceivably sue on the theory that it was negligent not to carry hollow points!  It is ultimately an individual choice based on the risks and rewards.  However, I will say that it is prudent to assume that if you do load hollow points, the state will attempt to use this fact against you, and very likely the jury will hear it.  Also, keep in mind that in some misguided states, hollow points and other kinds of ammunition are ILLEGAL, so you must know your local laws!  If you are ever put on trial for a defensive gun use with hollow points, your attorney should have a plan for the state's attempt to use the hollow points against you, and if he advises you hire your own expert to testify as to the fact and reasons why millions of law abiding gun owners carry hollow points, you should probably take that advice!

To the extent the reader disagrees with the outcomes cited above, and wants to do something about it, what are the options?  One possibility is to seek legislation that the fact that hollow points were carried is inadmissible, but this is not realistic.  The other option is to increase public awareness of the widespread use of hollow points by law abiding gun owners who merely want to defend themselves most effectively, and are also very mindful of the safety benefits of hollow points with respect to walls and ricochets.  Sooner or later this public knowledge makes its way to judges and juries, and hallow points will loose their stigma.  Much the same way the AR-15 is being re-branded as a "modern sporting rifle" instead of an "assault rifle," so too are hollow points in need of re-branding from their current status as "cop killers."

Friday, March 30, 2012

Are presumptions under 776.013 rebuttable (i.e. not conclusive), and why should Florida firearms owners care??

Are presumptions under 776.013 rebuttable (i.e. not conclusive), and why should Florida firearms owners care?

With respect to the latter question, let's suppose a homeowner is awoken in the middle of the night by a noise elsewhere in the home.  The homeowner retrieves her pistol and proceeds through the house to investigate.  The homeowner comes upon a man in a ski mask, holding a pry bar, and the homeowner notices that her front door has been pried open.  The homeowner points her gun at the intruder, who the homeowner reasonably believes to have entered the house for the purposes of committing a burglary, or worse.  The homeowner yells at the man to drop the pry bar, put his hands in the air and drop to his knees.  The burglar says, "Ok, ok, you got me!  Don't shoot!  I surrender!  Call the police to come get me!  I surrender!"  The burglar tosses the pry bar away, removes his ski mask, puts his hands in the air, and compliantly drops to his knees.  The homeowner and burglar are separated by 20 feet.  The homeowner's husband then arrives from the bedroom, having been awaken by the noise.  The homeowner instructs her husband to call 911, which he does, and tells the homeowner the police will be there shortly.  The burglar has not moved since surrendering.  At this point, the assume the homeowner has no fear of imminent death or great bodily harm.

Suppose the homeowner then shoots the burglar, who survives.  The police arrive, and the homeowner's husband explains everything he saw happen.  The homeowner says she shot not because she was afraid, but that she was angry at the burglar.  Will she go to jail?

Let's address the first question by introducing s.776.013 and

When a criminal defendant in Florida claims her use of force was in self defense, certain presumptions are made pursuant to s.776.013 with respect to home invasions:
(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person's will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
(4) A person who unlawfully and by force enters or attempts to enter a person's dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
§ 776.013, Fla. Stat. Ann.

The language of 776.013 dovetails with 776.012:
... a person is justified in the use of deadly force and does not have a duty to retreat if:(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony;
§ 776.012, Fla. Stat. Ann.
Taken together, it would seem that even if a defendant's use of deadly force was otherwise unjustified under 776.012 because the defendant did not have a reasonable "belief" that deadly force was necessary, if 776.013(1)(a) and (b) are satisfied, a reasonable "fear" is presumed. (It seems to me that in this context the words "belief" and "fear" are interchangeable, and the legislature was a little sloppy in its drafting...but who knows?).

In our hypothetical scenario above, at the time of the shooting 776.012 was clearly inapplicable, because the homeowner, by her own testimony was not in fear or imminent death or great bodily harm.  Even if her testimony was not available, her husband and the victim provide eye witness testimony as to the facts and circumstances, which suggest a reasonable person would not have been in imminent fear of death or great bodily harm, because the burglar had surrendered.  But what of 776.013?  (a) and (b) appear to be satisfied, because the burglar "had unlawfully and forcibly entered a dwelling" and the homeowner "had reason to believe that an unlawful and forcible entry or unlawful and forcible act ... had occurred."  The statute says there is a presumption she "held a reasonable fear of imminent peril of death or great bodily harm to ... herself ."  So in our hypothetical, we have a presumption provided by a statute that is the exact opposite of the facts in reality.  

So what is a "presumption" in the context of Florida criminal procedure?  Well first let's discuss presumptions generally.  To oversimplify slightly, a presumption instructs a trier of fact (i.e. the jury or judge) as to a finding.  The best example of this is the rebuttable presumption of innocence in a criminal case.  In our system, a defendant is presumed innocent (i.e. the judge or jury must find her innocent) unless and until the state rebuts that presumption by proving guilt beyond a reasonable doubt. But not all legal presumptions are rebuttable.  Sometimes a legal presumption is conclusive, meaning no matter how strongly the actual evidence might suggest a finding to the contrary, the trier of fact must accept the presumption as true.  Returning to our hypothetical owner, it could mean that if the presumption is conclusive, she won't go to jail because no matter what the facts show, if 776.013 applies, the trier of fact must find she was in fear for her life.  If the presumption is rebuttable, then the state can put on evidence (the testimony of the witnesses and her statements at the scene) to overcome the presumption.

So when are presumptions rebuttable, and when are they conclusive?

In civil cases, the Florida Evidence Code provides some guidance in civil cases through 90.301(2) :
90.301. Presumption defined; inferences
(1) For the purposes of this chapter, a presumption is an assumption of fact which the law makes from the existence of another fact or group of facts found or otherwise established.
(2) Except for presumptions that are conclusive under the law from which they arise, a presumption is rebuttable.
(3) Nothing in this chapter shall prevent the drawing of an inference that is appropriate.
(4) Sections 90.301-90.304 are applicable only in civil actions or proceedings.
§ 90.301, Fla. Stat. Ann.
Pursuant to (4), 90.301(2) only applies to civil cases.  See Hlad v. State, 565 So. 2d 762, 768 (Fla. 5th DCA 1990) opinion approved of, 585 So. 2d 928 (Fla. 1991)  ("There is no provision in the Florida Evidence Code for the use of presumptions in criminal cases.").  Nonetheless, cases interpreting 90.301(2) might be instructive.  One court has ventured that "conclusive under the law from which they arise" means the legislature must "designate" the presumption as conclusive.  See Don King Productions, Inc. v. Chavez, 717 So. 2d 1094, 1095 (Fla. 4th DCA 1998) ("Thus, it seems to us that unless the legislature specifically designates a presumption as conclusive, it is rebuttable ... .").  In Don King, the court was faced with a statute that contained several presumptions.  Some of those presumptions were labeled "rebuttable" and others were not labeled.  The question arose as to the absence of the term "rebuttable" in front of some presumptions rendered presumptions without that term conclusive.  In further support of its decision, the Don King court pointed out that the legislature had specifically removed the term "conclusive" from early drafts of the law. However, in Sun Elastic Corp. v. O.B. Indus., 603 So. 2d 516 (Fla. 3d DCA 1992) a concurring Judge Cope wrote:

I am unable to agree with the majority's suggestion that section 542.33[(2)(a)], Florida Statutes (1991), creates what amounts to an irrebuttable presumption. The legislature used the word “presumption” without adornment; under settled Florida law, an ordinary presumption is rebuttable. § 90.301(2), Fla.Stat. (1991); see also Straughn v. K & K Land Management, Inc., 326 So.2d 421, 424 (Fla.1976). If the legislature meant to create a conclusive presumption, it knew how to say so.
In that case, although the majority opinion never used the word "conclusive," Judge Cope perceived that in effect, the majority opinion was wrongly treating a statutory presumption as if the legislature had used the term "conclusive," when in fact that word was absent.  It is difficult to determine whether Cope's conclusion that his colleagues had interpreted the presumption as irrebuttable is correct, or whether the Florida courts have ever finally resolved this issue.  See e.g. Sarasota Beverage Co. v. Johnson, 551 So. 2d 503, 509 (Fla. 2d DCA 1989) (concurring opinion suggesting question should be certified to Florida Supreme court);  but see King v. Jessup, 698 So. 2d 339, 340 (Fla. 5th DCA 1997) (implying Capraro v. Lanier Business Products, Inc., 466 So.2d 212 (Fla.1985) established a conclusive presumption, which legislature eliminated with subsequent statute).

Returning then to 776.013, how have Florida courts treated the presumptions announced therein?  Two Florida appellate courts have stated the presumptions are conclusive:

The creation of section 776.013 eliminated the burden of proving that the defender had a reasonable belief that deadly force was necessary by providing a conclusive presumption of such. Fla. S. Comm. on Judiciary, CS for SB 436 (2005) Staff Analysis 5-6 (Feb. 25, 2005) (on file with comm.).
State v. Heckman, 993 So. 2d 1004, 1006 (Fla. 2d DCA 2007) (emphasis added); quoted as dicta by Bartlett v. State, 993 So. 2d 157, 163 (Fla. 1st DCA 2008).  Curiously, the staff analysis cited by Heckman states:
Conclusiveness of Presumption
Legal presumptions are typically rebuttable. The presumptions created by the committee
substitute, however, appear to be conclusive.
But the staff offered no basis for its statement.  Furthermore, the staff analysis states "This Senate staff analysis does not reflect the intent or official position of the bill’s sponsor or the Florida Senate."  Nonetheless, one could argue that the senators read the analysis, and thereafter voted for the bill thinking they were enacting a conclusive presumption.  But is it not more likely that many senators, many of whom are lawyers, never read the staff analysis, and instead assumed they were voting for a rebuttable presumption?

Along the lines of the analysis in Don King, I looked through some of the proposed amendments during the drafting of 776.013, and there does appear to have been a proposed insertion to make (4) rebuttable.  The implication being that it was apparently on at least one senator's mind that such language was necessary.  See Proposed Amendment No. 481721:
1 Representative Seiler offered the following:
2 3     Amendment (with title amendment)
4     On page 4, line 18,
5 remove:  all of said line
6 7 and insert:  an unlawful act involving force or violence. This
8 presumption may be rebutted.
9 10 ================ T I T L E  A M E N D M E N T =============
11     On page 1, line(s) 10,
12 remove:  all of said line
13 14 and insert:  creating a rebuttable presumption that a person
15 acts with
Can an argument be made about what it means that this proposed amendment was not acted on?

How have cases in Florida treated the presumptions under 776.013?  In one case, the court treated a presumption as rebuttable:
Here, Stieh had a right to be in the hotel room as he had lawfully rented the room for the night. The room qualified as a dwelling or residence for purposes of section 776.013.1 Only one witness, the victim, testified that he did not forcibly enter the hotel room in search of the wallets. Further, three of the witnesses testified the victim forcibly removed the appellant from the room at one point during the altercation. Thus, it appears the presumption in section 776.013(1)(a) applies to Stieh. The State's only rebuttal testimony corroborated that the victim was the aggressor and failed to rebut this presumption. See Hernandez Ramos v. State, 496 So.2d 837, 838 (Fla. 2d DCA 1986).
Stieh v. State, 67 So. 3d 275, 278 (Fla. 2d DCA 2011) (emphasis added).  It is not clear whether the Stieh court was referring to the presumption in (1) or (4).  Arguably, because the Stieh court found that even if the presumption had been rebuttable Stieh prevailed, Stieh may not be a true test for the conclusive v. rebuttable question of 776.013's presumptions.  Disturbingly, however, The Second District Court of Appeal is the same DCA that announced 776.013's presumptions as "conslusive" four years earlier in Heckman.

So can any conclusions be drawn here?  I don't think so.  I think the question of whether the presumptions in 776.013 are conclusive or rebuttable is in flux, and in considering their actions, Floridians would be wise to assume that the State will have an opportunity to rebut them.  

Should the presumptions in 776.013 be rebuttable or conclusive?  One argument is that we should not be second guessing the decisions made by people in the heat of the moment during a home invasion or carjacking (the statute also applies to people in vehicles).  Another is that people ought to be able to view their homes as refuges and feel secure in their "castles", and violations of that social contract are so evil that the violator "deserves whatever he gets."  But another argument might be that somewhere short of second guessing the homeowner, there can be situations where a the victim clearly surrendered, posed no threat, or was retreating, and in those circumstances defense of the home should not be absolute.  Personally, I find the policy arguments in favor of a conclusive presumption more persuasive.


Sunday, February 26, 2012

What is a Firearm Part III

I recently wrote to the ATF Technology Branch, and courtiously received a reply regarding certain questions pertaining to firearms frames or receivers.  The Branch wrote me back, and here is the relevant portion of their letter to me:
Q1:  For a given firearm, who determines which part to serialize, the manufacturer or ATF?  If ATF, what process does the manufacturer pursue to obtain that determination?

A1:  As you point out, as background, 27 CFR 478.92(a)(1)(i) states that the manufacturer must serialize the frame or receiver of the firearm.  If there are any doubts as to which part of a firearm constitutes the frame or receiver, ATF will make the final determination.  The manufacturer would submit a sample of the firearm in question to FTB at the following address:

ATF, Firearms Technology Branch
244 Needy Road
Martinsburg, WV 25405

Our Branch would make a determination and furnish a written response within 90 days of receiving the sample.

If a particular manufacturer wishes to apply a serial number to any part of a weapon other than the frame or receiver, the manufacturer may do so.  But this additional serial number must be in addition to the required number on the frame or receiver of the weapon--i.e., placing a serial number on the bolt, barrel, or slide, etc., would not preclude or satisfy the requirement to serialize the frame or receiver.

Q2: Assuming all parts have been properly serialized by the manufacturer, can one rely on the serialized part as being the one and only part constituting the "frame or receiver" and, thereby, the "firearm" as defined?

A2: No, you cannot assume that the serialized part is the firearm.  As noted above, manufacturers can serialize other component parts if they wish, and many companies will apply serial numbers to multiple components of the firearm.  It is not uncommon to see serial numbers on slides, barrels, bolts, top covers, cylinders, and even, in some cases, on parts as small as firing pins or as insignificant as grip panels.

So I believe this letter should make anyone think twice about shipping something to a non-FFL simply because it is not serialized.  There could be many reasons a particular part is not serialized, but could still be the "frame" or "receiver" as far as the ATF is concerned.  The manufacturer could make a mistake, or the firearm might have been stolen or for some other reason serial numbers were obliterated or forged.  Bottom line, a person needs to know exactly which part ATF considers to be the frame or receiver for that particular firearm, or risk engaging in an illegal transfer at their own peril.  

The letter should also put into perspective comments on the Internet such as "the lower receiver of an AR-15 is the only part that has to ship through an FFL because it is the serialized part," which appear over and over again and are relied on by the firearms community.  Technically, the real reason is that the lower receiver is considered the "frame" or "receiver", and therefore, it is the part the manufacturer must serialize.  But simply because it is serialized does not make it the regulated part, per se. 

Tuesday, February 7, 2012

Legal Implications of Gun-related Tchotchkes in Florida

I often hear of gun owners' aversions to gun-related tchotchkes, not because they don't want a particular item, but because they fear legal implications of having gun-related "stuff".  The concern is that in the aftermath of a self-defense shooting, things like a bullet-casing key chain, or an NRA doormat could be used by an overzealous prosecutor to portray the person as a "gun nut."  I stumbled across a Florida case that suggests such evidence would be inadmissible in Florida:
Above appellant's bed on the day of the search was a quotation:
Lord, grant me the serenity to accept the things I cannot change, the courage to change the things I can, and the wisdom to hide the bodies of those people I had to kill because they pissed me off.
[W]e disagree with the state that the sign over the defendant's bed “had a logical tendency to rebut” the defense that appellant “was unaware that an armed robbery of the victim was to take place.” Nothing in the evidence supported the theory espoused by the state at trial to admit the sign-that appellant was the shooter. In fact, the jury specifically found otherwise. The sign is an example of a genre of humor, the “folk wisdom” found on bumper stickers or bathroom walls. See supra, note 1. It is not probative of appellant's state of mind in this case, any more than possession of “The Godfather” DVD would *1232 demonstrate a predisposition for homicide in resolving business problems.
O'Connor v. State, 835 So. 2d 1226, 1231-32 (Fla. 4th DCA 2003).  That said, one can imagine situations where gun paraphernalia might be admissible, such as where a defendant denied that he owns any guns.  Aside from the legal implications of displaying your gun "stuff", there are always social consequences.  For example, I wonder if anyone has ever done a study as to whether vehicles displaying an NRA bumper sticker are more or less likely to be burglarized?

Wednesday, February 1, 2012

Florida's Self Defense Statutes Part I - Questions

As a Florida attorney and shooting sports competitor, I am bombarded with questions from friends regarding the defensive use of force.  Most people are unaware that much of this area of law is governed by statutes, and reading the statutes answers some questions, but often raises others.

The logical starting point is:

776.012 Use of force in defense of person.—A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. 
However, a person is justified in the use of deadly force and does not have a duty to retreat if:
(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or
(2) Under those circumstances permitted pursuant to s. 776.013.
And also:
776.031 Use of force in defense of others.—A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the other’s trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony. A person does not have a duty to retreat if the person is in a place where he or she has a right to be.
On the surface, 776.012(1) seems straightforward, especially the first portion of the paragraph, "[h]e or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another."  But what does "imminent" mean?  And "great bodily harm?"  And what is the standard for a "reasonable" belief?

The second area addressed by 776.012(1) is "to prevent the imminent commission of a forcible felony."  What is a "forcible felony"?
776.08. Forcible felony
“Forcible felony” means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.
Can deadly force really be used, pursuant to s.776.012(1), to prevent the imminent commission of all of these crimes?  Consider arson:
806.01 Arson.—
(1) Any person who willfully and unlawfully, or while in the commission of any felony, by fire or explosion, damages or causes to be damaged:
   (a) Any dwelling, whether occupied or not, or its contents;
  (b) Any structure, or contents thereof, where persons are normally present, such as: jails, prisons, or detention centers; hospitals, nursing homes, or other health care facilities; department stores, office buildings, business establishments, churches, or educational institutions during normal hours of occupancy; or other similar structures; or
  (c) Any other structure that he or she knew or had reasonable grounds to believe was occupied by a human being,
is guilty of arson in the first degree, which constitutes a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(2) Any person who willfully and unlawfully, or while in the commission of any felony, by fire or explosion, damages or causes to be damaged any structure, whether the property of himself or herself or another, under any circumstances not referred to in subsection (1), is guilty of arson in the second degree, which constitutes a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(3) As used in this chapter, “structure” means any building of any kind, any enclosed area with a roof over it, any real property and appurtenances thereto, any tent or other portable building, and any vehicle, vessel, watercraft, or aircraft.
So in Florida, torching an unoccupied dwelling is a first degree felony, and torching any unoccupied "structure" (which includes cars, boats, and even tents) is a second degree felony.  So suppose a farmer stumbles upon some kids torching his unoccupied barn, or a business owner stumbles upon some kids torching his empty warehouse, or a vehicle owner discovers some rioters torching his car.  If the property owner shoots the person with the torch in his hand, does s. 776.012 or 776.031 legally justify the shooting?   

Returning to the "reasonableness" question, I see a distinction between a reasonable belief that shooting someone resolute in their intent is the only way to stop them from committing a forcible felony, but nonetheless, shooting the person wouldn't be reasonable, because under the facts and circumstances, although the person is certainly committing a forcible felony, there is no reasonable expectation that somebody will be hurt by the criminal.  Does the case law make this distinction?

Also problematic is the inclusion of aggravated stalking among forcible felonies:
784.048(3): Any person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person, and makes a credible threat with the intent to place that person in reasonable fear of death or bodily injury of the person, or the person’s child, sibling, spouse, parent, or dependent, commits the offense of aggravated stalking, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
If imminent harm from the stalker is not present, but the final completion of the aggravated stalking is about to occur, does that mean you can shoot the stalker?  Even a cyber stalker?  It is hard to envision a scenario where that would seem reasonable.

Questions and more questions.  In future posts I will try to share some case law that may help shed some light on this area of law.  But keep in mind that some of these questions simply have no answers until a case comes before a court and a legal opinion is issued, and even then, the opinion may raise more questions than it answers.

Monday, January 23, 2012

Legal issues surrounding the 2010-2011 Ban on Proposed South Korean Transfers of M1 Rifles and Carbines to the US

The M1 Garand and M1 Carbine are WWII era rifles. For a history of these rifles, consult Wikipedia.  During the Korean War, the US provided these arms to South Korea.  In 2010, news reports emerged that the South Korean government sought to sell the M1s it still has to collectors in the US, but the efforts were blocked by the Obama administration.  Now, in 2011, reports are emerging that M1 Garands might be allowed in, but not the M1 Carbines.

Legal Questions:
  1. Exactly which governmental department of the "Obama administration" purports to have authority to make these rules?  Does it indeed have such authority?
  2. Do the statutes enabling the Civilian Marksmanship Program trump that agency's authority to prohibit import of these firearms?
  3. Who would have standing to challenge the agency action?

I have had a difficult time determining which government agency was responsible for the prohibition.  Most news reports refer vaguely to "the Obama administration."  Narrowing down the acting agency is important, if for no other reason in that it will aid in finding the relevant written rulings or letters.  One Foxnews report seems to say the Department of State is responsible, but that when pressed, the issue was deflected to ATF.  Using the "search" function on the US Department of State web site for the key word "garand" turned up no hits.  I am considering a Freedom of Information Act request to satisfy my curiosity on this point.

I have seem some websites suggest that the Garands were sent to Korea pursuant to the Lend Lease Act (the "LLA").  The text of the Lend Lease Act provides:
 SEC. 4. All contracts or agreements made for the disposition of any defense article or defense information pursuant to section 3 shall contain a clause by which the foreign government undertakes that it will not, without the consent of the President, transfer title to or possession of such defense article or defense information by gift, sale, or otherwise, or permit its use by anyone not an officer, employee, or agent of such foreign government.
This would suggest that if the LLA applies, even after all these years, then the consent of the President is required for S. Korea to transfer them.  Apparently, Congress left provision of such consent entirely up to the discretion of the President.  Thus, to the extent the President can delegate that authority to the State Department (I'm not sure he can, but I don't think that is a critical issue), it would seem the State Department's 2010 ban was kosher.

However, the legal story of the Garands may not end there.  In 1996 (yes, during the Clinton administration!) a law was passed that actually promoted the sale of Garands to civilians.  Specifically, Title 36 US Code Chapter 407 created the Civilian Marksmanship Program, a non-governmental non-profit corporation. Sub chapter II provides various functions for the CMP:
§ 40722. Functions

The functions of the Civilian Marksmanship Program are—
(1) to instruct citizens of the United States in marksmanship;
(2) to promote practice and safety in the use of firearms;
(3) to conduct competitions in the use of firearms and to award trophies, prizes, badges, and other insignia to competitors;
(4) to secure and account for firearms, ammunition, and other equipment for which the corporation is responsible;
(5) to issue, loan, or sell firearms, ammunition, repair parts, and other supplies under sections 40731 and 40732 of this title; and
(6) to procure necessary supplies and services to carry out the Program.
Long story short, the CMP is a great source for civilians to buy surplus Garands!  Any member of a CMP affiliated shooting club (subject to certain conditions) can order one and have it shipped directly to their home!  I know this because I am the proud owner of a CMP Garand!

But here is where things get interesting, there is another section which adds a wrinkle to the S. Korean Garands:

§ 40728A. Recovery of excess firearms, ammunition, and parts granted to foreign countries and transfer to corporation

(a) Authority to Recover.— The Secretary of the Army may recover from any country to which rifles, ammunition, repair parts, or other supplies described in section 40731 (a) of this title are furnished on a grant basis under the conditions imposed by section 505 of the Foreign Assistance Act of 1961 (22 U.S.C. 2314) any such rifles, ammunition, repair parts, or supplies that become excess to the needs of such country.
(b) Cost of Recovery.—
(1) Except as provided in paragraph (2), the cost of recovery of any rifles, ammunition, repair parts, or supplies under subsection (a) shall be treated as incremental direct costs incurred in providing logistical support to the corporation for which reimbursement shall be required as provided in section 40727 (a) of this title.
(2) The Secretary may require the corporation to pay costs of recovery described in paragraph (1) in advance of incurring such costs. Amounts so paid shall not be subject to the provisions of section 3302 of title 31, but shall be administered in accordance with the last sentence of section 40727 (a) of this title.
(c) Availability for Transfer to Corporation.— Any rifles, ammunition, repair parts, or supplies recovered under subsection (a) shall be available for transfer to the corporation in accordance with section 40728 of this title under such additional terms and conditions as the Secretary shall prescribe for purposes of this section.
So wait a minute...what exactly was the Foreign Assistance Act of 1961 (the "FAA"), and is it possible some of the S. Korean Garands were subject to it?  Well, unfortunately this glimmer of hope is quickly clouded by the text of the FAA, which is riddled with language similar to the LLA in that Presidential authority is required for transfer of the weapons.  This sort of raises the question, that given the fact that the Secretary of the Army reports to the President, what is the implication of Congress explicitly granting recovery powers to the Secretary of the Army?  Can the Secretary of the Army act independently, and even contradictory to Presidential orders, pursuant to the CMP statute?

Preliminary conclusions:
If the Garands were sent to S. Korea under the FAA or LLA, in either case Presidential consent is required for S. Korea to transfer them.  I am not well versed in agency law, but I doubt it is very significant if the State Department issues or withholds consent by virtue of delegation by the President to that department.  The CMP statute does not seem to remove the authority of the President with respect to items the CMP is responsible for selling, but also gives authority to the Secretary of the Army to recover Garands under the FAA.  So again, nothing un-kosher just yet.  The only interesting legal question then is what would happen if the President wanted to withhold consent of the S. Korean transfer of the Garands, but the Secretary of the Army wanted to transfer them to the CMP?  That I don't know, and it is a moot question until the Secretary of the Army actually tries.

Again, the disclaimer for the above analysis is the assumption that the Garands made it to S. Korea under the FAA or LLA.  There might also be some other laws governing not just the transfer of these rifles, but specifically a transfer to the US, which might implicate powers of the President or the State Department.  If they were simply sold outright to S. Korea, then their importation would probably fall within the purview of the Gun Control Act and the ATF.

In conclusion, the Obama administration is probably acting within its authority.  But in light of the CMP statute, Congress (pursuant to a law signed by Clinton) actively promotes putting both M1 Garands and M1 Carbines into the hands of US citizens.  The Obama administration's policy suggests his administration's decision to withhold consent of the S. Korean transfer is contrary to the will of the people.

Tuesday, January 17, 2012

Legality of Reloading Ammunition and Various Thoughts...

When I first began shooting competitively, mentors steered me towards rifles and pistols chambered in .22LR (LR = long rifle).  .22LR is a mild small caliber round ideal for target shooting, and the required round in many disciplines.  It is however, a round that is not reloaded, the spent brass is sent off to be recycled.  I believe this is because of the impracticality of re-priming rim fire cartridges, and also the relatively low cost of .22LR ammunition.

As I progressed to center fire firearms, reloading spent brass cases proved far more economical than purchasing factory ammunition.  Additionally, hand crafted ammunition can be of superior quality than mass produced ammunition, if done properly.  The reader is left to his or her own devices for further study of the reloading process.


p. 184

(H4) Is a person who reloads ammunition required to be licensed as a manufacturer?
Yes, if the person engages in the business of selling or distributing reloads for the purpose of  livelihood and profit. No, if the person reloads only for personal use.
[18 U.S.C. 922(a) (i) and 923(a), 27 CFR 478.41]

Interestingly, the GCA defines "ammunition" as (s.921(a)):
(A) The term “ammunition” means ammunition or cartridge cases, primers, bullets, or propellent powder designed for use in any firearm. 
This implies that to commercially manufacture ammunition components, one would need to be licensed.  This raises some interesting questions.  For example, there is a new cartridge out, the .300 AAC in various specifications, which can be manufactured rather easily from existing .223 cases (an inexpensive case available in mass quantities) with minor cutting and shaping.  If one wanted to get into the business of mass-converting .223 brass into .300AAC brass, would a license be required?  What about bullet casters, who manufacture and sell only the lead bullets (aka "heads")?  In practice, does the ATF check or even care about these things?  And if so, why?

The policy reasons behind a statutory regime of licensing commercial manufacturers of ammunition is not entirely clear to me.  I do not believe the ATF has any responsibility or involvement in "certifying" or monitoring that manufactured ammunition is safe for use, analogous to the FDA with food and drugs. 

Thus, it seems to me as nothing more than a tax.  Especially so, because once sold by the manufacturer, there is no licensing or record keeping requirement of subsequent sellers (although this may not be the case for import/export or NFA regulated items):
p. 176
(A4) What kinds of ammunition are covered by the GCA?
Ammunition includes cartridge cases, primers, bullets or propellant powder designed for use in any firearm other than an antique firearm.  Items NOT covered include blank ammunition, tear gas  ammunition, pellets and nonmetallic shotgun hulls without primers.  Generally, no records are required for ammunition transactions. However, information about the disposition of armor piercing ammunition is required to be entered into a record by importers, manufacturers, and collectors.  A license is not required for dealers in ammunition only.
[18 U.S.C. 921(a)(17) and 922(b)(5), 27 CFR 478.11 and 478.125]
(B4) May an unlicensed person obtain ammunition from an out-of-State source?
Yes, provided he or she is not a person prohibited from possessing or receiving ammunition.  [18 U.S.C. 922(g) and (n)]

(F11) Is a license required to engage in the business of selling small arms ammunition?
No. A license is not required for a dealer in ammunition only, but a manufacturer or an importer of ammunition must be licensed.
[18 U.S.C. 922 (a)(1)(B)]
The fact that ATF licenses ammunition manufacturers, but does not necessarily regulate quality or safety, makes everything even more interesting from a legal and policy perspective.  The reloading process itself is very safe, I am sure more people are injured changing light bulbs than reloading ammunition.  And for the most part, the reloader assumes the risks associated with using the ammunition he makes.

But what about average, every day gun owners who purchase reloaded ammunition at gun shows or elsewhere?  I would imagine that the average citizen simply assumes that some federal regulatory body, probably ATF, holds manufacturers to some sort of quality control standards, like the FDA does for food and drugs.  Or in addition, that some sort of bond or insurance is secured in case the ammunition is defective and causes personal injury or property damage.  But since these assumptions are wrong, where does that leave us?  I guess this is one of the reasons that firearms manufacturers often include strict instructions in the manuals not to use reloaded ammunition, in an effort to limit their liability on the argument that their firearm's chamber ought to be able to handle the maximum possible pressure a cartridge could create, not just the SAAMI specification.  A hand loader might knowingly assume the risk of exceeding the SAAMI specification, but does the purchaser of reloaded ammunition necessarily know what they are getting?

I would not suggest that ATF get in the business of ammunition testing and certification, but what they could do is clearly inform the public that they do not do this, and perhaps require that all ammunition, reloaded or not,  be sold with a standard form disclaimer either printed on the box or inside the plastic baggie (as reloads are often packaged at gun shows) clearly stating that the ATF does not regulate  ammunition for safety.  I think as a matter of safety and consumer protection, that reloads need to be clearly labeled as such--a consumer deserves to know whether they are purchasing a particular manufacturer's factory loaded ammunition or reloads merely recycling that manufacturer's brass (although some manufacturers outsource their brass and it may not be head stamped with their name, often times the manufacturer and the head stamp are the same), which could confuse and mislead the consumer.

In "sophisticated" shooting circles, we all know that it is "buyer beware" when purchasing reloads.  But I've known several novice and infrequent shooters who bought reloads at gun shows without fully appreciating a) that they had bought reloads in the first instance, and b) the dangers in using ammunition over- or under-pressure.  To protect those people, I would not oppose some kind of warning regulations, similar to cigarette warnings.  In fact, ammo warnings make a heck of a lot more sense to me, because you're an idiot if you don't appreciate the dangers of smoking in today's world, but you're not an idiot if you are a gun owner who hasn't been educated as to the necessity of using properly pressured ammunition in your firearm.

Monday, January 16, 2012

Non-immigrant Alien Resident Purchase and Posession of Firearms - Hunting License Exception

Wikipedia gives a nice summary of the GCA:
The Gun Control Act of 1968 (GCA or GCA68), Pub.L. 90-618, 82 Stat. 1213, enacted October 22, 1968 by president Lyndon Johnson, is a federal law in the United States that broadly regulates the firearms industry and firearms owners. It primarily focuses on regulating interstate commerce in firearms by generally prohibiting interstate firearms transfers except among licensed manufacturers, dealers and importers.
The GCA is codified as Chapter 44 of Title 18 of the United States Code, and is Title I of the U.S. federal firearms laws. The National Firearms Act of 1934 (NFA) is Title II. Both GCA and NFA are enforced by the ATF.
Aliens are addressed in § 922. "Unlawful acts".  Specifically:
(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person— 
(5) who, being an alien—

(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26)));
(g) It shall be unlawful for any person—
(5) who, being an alien—

(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26)));
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. 
However, there are exceptions:
(y) Provisions Relating to Aliens Admitted Under Nonimmigrant Visas.—
(1) Definitions.— In this subsection—
(A) the term “alien” has the same meaning as in section 101(a)(3) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(3)); and
(B) the term “nonimmigrant visa” has the same meaning as in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26)).
(2) Exceptions.— Subsections (d)(5)(B), (g)(5)(B), and (s)(3)(B)(v)(II) do not apply to any alien who has been lawfully admitted to the United States under a nonimmigrant visa, if that alien is—
(A) admitted to the United States for lawful hunting or sporting purposes or is in possession of a hunting license or permit lawfully issued in the United States;
ATF regulations also recognize the hunting permit exception:
§ 478.32   Prohibited shipment, transportation, possession, or receipt of firearms and ammunition by certain persons. (a) No person may ship or transport any firearm or ammunition in interstate or foreign commerce, or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce, or possess any firearm or ammunition in or affecting commerce, who:
(5) Being an alien—
(i) Is illegally or unlawfully in the United States; or
(ii) Except as provided in paragraph (f) of this section, is a nonimmigrant alien: Provided, That the provisions of this paragraph (a)(5)(ii) do not apply to any nonimmigrant alien if that alien is-
(A) Admitted to the United States for lawful hunting or sporting purposes or is in possession of a hunting license or permit lawfully issued in the United States;

§ 478.99   Certain prohibited sales or deliveries.
(c) Sales or deliveries to prohibited categories of persons. A licensed manufacturer, licensed importer, licensed dealer, or licensed collector shall not sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person:
(5) Is an alien illegally or unlawfully in the United States or, except as provided in §478.32(f), is a nonimmigrant alien: Provided, That the provisions of this paragraph (c)(5) do not apply to any nonimmigrant alien if that alien is—
(i) Admitted to the United States for lawful hunting or sporting purposes or is in possession of a hunting license or permit lawfully issued in the United States;


§ 478.124   Firearms transaction record.
(3) After the transferee has executed the Form 4473, the licensee:
(i) Shall verify the identity of the transferee by examining the identification document (as defined in §478.11) presented, and shall note on the Form 4473 the type of identification used;
(ii) Shall, in the case of a transferee who is an alien legally in the United States, cause the transferee to present documentation establishing that the transferee is a resident of the State (as defined in §478.11) in which the licensee's business premises is located, and shall note on the form the documentation used. Examples of acceptable documentation include utility bills or a lease agreement which show that the transferee has resided in the State continuously for at least 90 days prior to the transfer of the firearm; and
(iii) Must, in the case of a transferee who is a nonimmigrant alien who states that he or she falls within an exception to, or has a waiver from, the nonimmigrant alien prohibition, have the transferee present applicable documentation establishing the exception or waiver, note on the Form 4473 the type of documentation provided, and attach a copy of the documentation to the Form 4473.

(R1) May nonimmigrant aliens legally in the United States purchase or possess firearms and ammunition while in the United States?
Nonimmigrant aliens generally are prohibited from possessing or receiving (purchasing) firearms and ammunition in the United States. There are exceptions to this general prohibition. The exceptions are as follows:
1. nonimmigrant aliens who possess a valid (unexpired) hunting license or permit lawfully issued by a State in the United States;
Significantly, even if a nonimmigrant alien falls within one of these exceptions, the nonimmigrant alien CANNOT purchase a firearm from a Federal firearms licensee (FFL) unless he or she (1) has an alien number or admission number from the Department of Homeland Security (formerly the Immigration and Naturalization Service) AND (2) can provide the FFL with documentation showing that he or she has resided in a State within the United States for 90 consecutive days immediately prior to the firearms transaction. [18 U.S.C. 922(g)(5)(b) and 922(y), 27 CFR 478.124, ATF Rul. 2004-1]

(R2) Typically, who are "nonimmigrant aliens?"
In large part, nonimmigrant aliensare persons traveling temporarily in the United States for business or pleasure, persons studying in the United States who maintain a foreign residence abroad, and certain foreign workers. Permanent resident aliens are NOT nonimmigrant aliens. Permanent resident aliens often are referred to as people with "green cards."
(R8) I am a nonimmigrant alien who has resided in Idaho for 1 year. I have a valid Montana hunting license. Can I use the Montana license as evidence that I fall within an exception to the nonimmigrant alien prohibition when I go to buy a gun from a dealer in Idaho?
Yes. A valid hunting license or permit from any State within the United States satisfies the hunting license exception to the nonimmigrant alien prohibition. The license does not have to be from the State where the nonimmigrant alien is purchasing the firearm. Please note, the transaction must comply with State and local laws.
(R9) I am a nonimmigrant alien who is on a month-long vacation in the United States. I have a hunting license and an admission number. Can I legally buy a firearm from a Federal firearms licensee (FFL) in the United States and take possession of it in the United States?
No. You cannot legally buy a firearm from an FFL and take possession of it in the U.S. because you have not resided in a State within the United States for 90 days.
I hope this serves as a good starting point for an attorney advising a non-immigrant alien resident.  As to the procedure to obtain a hunting license, of course this will vary on a state-by-state basis.  I would caution the alien to seek a license that is a "lifetime" license or infinitely renewable, because if the license expires, so does the exception.  I did not see any rules limiting the immigrant to "hunting"-type firearms only (i.e. rifles and shotguns), and as a practical matter, handguns are commonly used for hunting, although not as frequently as other arms.  And even when not specifically intended for game, handguns are often considered part of a hunter's "gear" to provide a quick defensive response to dangerous predators who pick up the scent of a hunter's kill--for example a hunter might carry a pistol to respond to (or scare away) wolves who become too curious about a deer he shot with a rifle.  The regulations do not suggest an actual intent or attempt to ever go hunting, but it might be advisable to do so and document the effort.  Also, I would do more research and possibly seek an ATF letter before a non-FFL would transfer to a known non-immigrant alien, even one possessing a valid hunting license.

What do I think of these laws?  First, let me say I have mixed thoughts on non-immigrant visas.  Take for example the H1B "special skills" work visa.  Nothing wrong with the US "draining brains" from other countries if we truly don't have the skills here.  As long as the situation is well policed, legal immigration and non-immigrant visas are, like everything in life, healthy in moderation.  On the other hand, I believe several if not all of the 9/11 perpetrators were here on non-immigrant visas.

But putting immigration policy aside, and the anomaly of terrorists, I have known many H1B and T1 (student) immigrants and they are all good people.  If they want to legally own firearms for sporting and defensive purposes while they are here, why not?  Let them take the things they learn here back to their homelands and convey to their countrymen how much safer they were here in the US, and how less oppressive the US government is to its people, because the US trusts its residents with guns.

In that vein, I don't see much need for the hunting license exception, but would rather see an exception for any legal non-immigrant alien.