Posts tagged ‘statutory interpretation’

07/11/2013

Schrödinger’s Open Carry in Arkansas

by wfgodbold

Before I get into the meat of Act 746 of Arkansas’s 89th General Assembly (on which both Clayton Cramer and Sebastian and Bitter have recently written), let me congratulate Illinois on its actual passage–over the governor’s vet0–of a shall-issue concealed carry licensing scheme. Welcome to the club!

Now, here in Arkansas, much hullabaloo has been made over Act 746, which went into effect on July 1st. That act changed the language in Arkansas’s law regarding the offense of carrying a weapon (Ark. Code Ann. § 5-73-120), and in the law governing possession of handguns on school property (Ark. Code Ann. § 5-73-119).

The main issue is with § 5-73-120, which previously read:

(a) A person commits the offense of carrying a weapon if he or she possesses a handgun, knife, or club on or about his or her person, in a vehicle occupied by him or her, or otherwise readily available for use with a purpose to employ the handgun, knife, or club as a weapon against a person.

(b) As used in this section:

(1) “Club” means . . . ;

(2) “Handgun” means . . . ; and

(3)(A) “Knife” means . . . .

(B) “Knife” includes . . . .

(c) It is a defense to a prosecution under this section that at the time of the act of carrying a weapon:

. . .

(4) The person is carrying a weapon when upon a journey, unless the journey is through a commercial airport when presenting at the security checkpoint in the airport or is in the person’s checked baggage and is not a lawfully declared weapon; . . .

Note that though this section provided the “journey” defense, subsection (b) did not actually define what qualified as a journey.

As of July 1st, the statute, as amended by Act 746, now reads:

(a) A person commits the offense of carrying a weapon if he or she possesses a handgun, knife, or club on or about his or her person, in a vehicle occupied by him or her, or otherwise readily available for use with a purpose to attempt to unlawfully employ the handgun, knife, or club as a weapon against a person.

. . .

(b) As used in this section:

. . .

(3) “Journey” means travel beyond the county in which a person lives; and

. . .

(c) It is permissible to carry a handgun under this section that if at the time of the act of carrying a weapon:

. . .

(4) The person is carrying a weapon when upon a journey, unless the journey is through a commercial airport when presenting at the security checkpoint in the airport or is in the person’s checked baggage and is not a lawfully declared weapon; . . . [emphasis added]

So, the amended statute now defines journey, changes defenses to carrying a weapon to when it is permissible to carry a weapon, and adds what appears to be a mens rea element to the offense itself–the person’s purpose must be to unlawfully employ the handgun.

The situation is further muddled by AG Dustin McDaniel’s official opinion on the new journey provision of § 5-73-120, delivered in response to a state senator’s request for clarification of the meaning of the journey provision. McDaniel is very careful in his opinion to limit it to the meaning of this provision–in footnote 7, he states:

The act defines as one element of a possession offense under subsection 5-73-120(a) having “a purpose to attempt to unlawfully employ the handgun, knife, or club as a weapon against a person.” Acts 2013, No. 746, § 2 (new language underlined). Although one might debate the significance, if any, of this change in terminology, it is clearly immaterial to your question.

Because the state senator only asked about the journey provision, McDaniel dodged the more material question of whether the changes to § 5-73-120(a) by themselves decriminalize open carry in Arkansas.

I will remind you, gentle reader, that I am a law student–not a lawyer–and nothing in this post is offered as legal advice.

That disclaimer out of the way, I will say that I don’t plan on being the test case.

03/22/2012

Trayvon Martin, George Zimmerman, and Florida’s “Stand Your Ground” law

by wfgodbold

By now, I’m sure you’ve heard of the shooting in Florida; Zimmerman, patrolling the neighborhood as part of the neighborhood watch, called 911 and reported a suspicious person. He followed, and eventually got into a scuffle with and shot Trayvon Martin, a 17 year old. The anti-gunners have made great hay about how this proves the folly of Florida’s “stand your ground” laws, and how those laws should be called “shoot first, ask questions later” laws instead, and how as written, they let people get away with murder.

Robb has some comments on the incident from an actual lawyer, but that doesn’t mean I can’t hold forth with my limited knowledge.

That said, I don’t know all the facts; I’m only going to look at the law itself, and see if it legalizes murder, as the anti-gunners claim.

The so-called “Stand Your Ground” provision is in Florida Statues § 776.013(3), but to get the context, we’ll start with the overarching provisions first and see what they cover, beginning with § 776.032:

(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).
Fla. Stat. Ann. § 776.032 (West)

Well, that’s as clear as mud! We need to look at §§ 776.012, 776.013, and 776.031 to see when persons are permitted the use of force.

From § 776.013, we see that:
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.

Fla. Stat. Ann. § 776.012 (West)

Okay, that clears things up a bit; the first situation in which a person is immune from criminal and civil proceedings for the use of force is when they reasonably believes that the force is necessary to prevent death or great bodily harm to himself or others, or prevent the commission of a forcible felony.

Or under the circumstances detailed in § 776.013:

(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.
(2) The presumption set forth in subsection (1) does not apply if:
(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or
(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or
(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or
(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle 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 entering or attempting to enter was a law enforcement officer.
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
(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.
(5) As used in this section, the term:
(a) “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.
(b) “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.
(c) “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.
Fla. Stat. Ann. § 776.013 (West)

This section is quite a bit more detailed. It first sets out two situations in which a person is presumed to have a fear of imminent death or serious bodily harm (which, from § 776.012, remember, was one of the requirements for a person to be justified in using force): the first situation is when the person against whom the force is used is in the process of unlawfully entering a dwelling, residence, or vehicle, or was attempting to remove a person from such a place against that person’s will; the second situation is when the person using the force knew or had reason to believe that an unlawful and forcible entry, or unlawful and forcible act was occurring or had occurred.

Part (2) of this section details the various exceptions to this presumption; the key “stand your ground” subsection is in § 776.013 (3), which is bolded above. Note that the person standing his ground and using force must “reasonably believe” that meeting force with force is necessary to prevent death or serious injury to himself or others, or to prevent a forcible felony. He must also not have been engaged in an unlawful activity.

The final section mentioned in the statute that lists which uses of force are justifiable and immune from civil or criminal action is § 776.031, which reads:

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.

Fla. Stat. Ann. § 776.031 (West)

Okay, so you can use force (but not deadly force) to prevent a person from trespassing on or interfering with the property of another member of your household, or of those to whom you owe a legal duty to protect; again, deadly force is only allowed in this case to prevent the immediate commission of a forcible felony (which are listed in § 776.08, and are “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.” Fla. Stat. Ann. § 776.08 (West)).

The final line, “A person does not have a duty to retreat if the person in in a place where he or she has a right to be,” is more problematic, especially in this statute. It seems almost superfluous, but when interpreting statutes, there’s no such thing as superfluous language; the legislature put it there for a reason, and so it must be considered. I can only think that it means that if someone has the right to be on a specific piece of property, but the person who has the duty to protect that property believes the first person is trespassing, the supposed trespasser has the right to defend himself agains the force used by the supposed defender. I think.

Back to the main part of the stand-your-ground controversy:

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

This hinges, as most things in law do, on the “reasonableness” of the actor; generally, an actor’s reasonableness is a question of fact that the jury must decide. In this case, since that reasonableness is directly related to whether or not the actor is immune from prosecution, I think (and once again, while I am a law student (and a lowly first-year, at that), I am not a lawyer; I don’t even play one on TV) this would be determined by a judge; if the judge determines that no reasonable jury would find that the actor acted unreasonably, then the actor will likely be immune from prosecution (this is how a judge determines that a judgement a jury has handed down should be overturned).

It looks to me like Zimmerman’s immunity (or not) from prosecution will depend on two things: the reasonableness of his actions, and whether he started the altercation (if Zimmerman assaulted Martin, then he falls under one of the exceptions in § 776.013(2), since he (the person using defensive force) was engaged in an unlawful activity)).

Since the facts I’m familiar with regarding this case are only what the media have published, and the media are notoriously inaccurate, I’m not sure whether Zimmerman’s actions were protected by this statute or not; I do think, though, that it’s pretty clear that Florida’s “Stand Your Ground” law does not legalize murder, as the anti-gunners claim.

Isn’t law fun?

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