MURDERS IN TEXAS: RACISTS OR REVENGE?

Every murder turns on a bright hot light, and

a lot of people have to walk out of the shadows.

~Mark Hellinger

This post is to remind everyone about how important law enforcement is to the public. Those who serve to administer justice are always in danger. Highway Patrol Troopers are often killed simply for writing a ticket or run over by hit and run drivers. Police officers get shot with AK 47’s pursuing suspects or simply trying to serve warrants.  As we have all seen numerous times on television, persons create wildly dangerous car chases, endangering law enforcement and the public, due to such things as violations of probation, escape from criminal acts, or drunk driving.

 Desperate people, some of whom are drug addicts, persons carrying a deadly grudge, or criminals on the run, often take desperate and violent actions without any regard of the consequences. Individuals who prosecute alleged violators of our laws always have the threat of harm hanging over their heads.

 This danger is not limited to the largest cities of this country, but also includes smaller communities. People do not expect cold blooded murders of law enforcement officials in less populated areas. Yet, three of the brutal Texas murders discussed in this post occurred in Kaufman County—which is comprised of approximately 103,000 people. Kaufman County is generally split between small rural towns and Dallas commuter suburbs.

 On January 31, 2013 an Assistant District Attorney was shot five times in a parking lot as he made his way into the courthouse in Kaufman County, Texas. Shortly thereafter, the District Attorney of Kaufman County announced during a media interview that he was going to find the culprits and administer stern justice. He vowed to capture those who had killed his assistant.  He stated as follows: “We’re very confident that we’re going to find you, we’re going to pull you out of the hole you’re in, we’re going to bring you back and let the people of Kaufman County prosecute you to the fullest extent of the law.”

Approximately two months later, both he and his wife were brutally gunned down in their home.  She was killed with a single gun shot wound. He was shot twenty times.  Quoting, Pete Williams and Jeff Black.

In Colorado, a killer knocked on the door of the head of Colorado’s Department of Corrections and shot him when he came to the door. The killer was later gunned down by law enforcement officers in a shoot out. He was a member of a white supremacist gang known as the 211 Crew.  The 211 Crew has been linked with the Aryan Brotherhood.

Is there a possible link? The Texas murders, it has been speculated, may have been carried out by members of the Texas Aryan Brotherhood. They have recently been singled out by Texas law enforcement for prosecution—especially for running methamphetamine labs.  If the murders were committed by members of the Texas Aryan Brotherhood, this is a very dangerous situation for those who have actively prosecuted or arrested members of this gang.  The concern of law enforcement has peaked to such a point that a Houston Federal Prosecutor, fearing for his safety and that of his family, removed himself from a large racketeering case against members of the Aryan Brotherhood of Texas.  He has since been replaced by a prosecutor from Washington, D.C.  Quoting, Kevin Krause.

According to Mark Potock of the Southern Poverty Law Center, “if this really was an assassination by the Aryan Brotherhood of Texas, we are about to see a war begin.” The Aryan Brotherhood is the most violent prison gang, according to Potock. “While only .1% of inmates are in the Aryan Brotherhood, 18% of all prison murders are committed by the white supremacist group.”

The District Attorney’s office of Kaufman County was one of the numerous Texas and federal agencies involved in a multiple-year investigation that led to the recent indictments of 34 alleged members of the Aryan Brotherhood of Texas, including four of its senior leaders. Quoting, Ed Lavandera and Holly Yan.  At the time, Assistant U.S. Attorney Lanny A. Breuer called the indictment a “devastating blow” to the organization, which he said uses threats of violence, including murder, against “those who violate (its) rules or pose a threat to the enterprise.”

The Texas Aryan Brotherhood has the reputation for being one of the most brutal gangs as a result of murders that occur in and out of prison facilities. The group is able to violently address any threat. In the past 20 years, parts of Eastern Kaufman County have increasingly become home to methamphetamine labs.  Many of these labs are run by white supremacist groups. ChicagoTribune.Com, Tight Security after Texas D.A. Killing. As time has progressed, the Texas Aryan Brotherhood has transitioned from primarily being a “white power” organization into an ultra-violent major money making business. Their methods of income include the sale of illegal drugs and extortion. A great portion of the gang’s activity is controlled from higher level members who are incarcerated.

As of the date of this posting, and what makes this case even more captivating, there has been a major twist.  A former Justice of the Peace of Kaufman County has been arrested in Dallas for making terroristic threats via email to Kaufman public officials, as well as murder. His bond has been set at twenty-three million dollars. In addition to the Aryan Brotherhood, he was a person of very high interest during the investigation because he had been prosecuted by the Assistant District Attorney for theft, resulting in the loss of his job and law license.  As a result of the conviction for theft, he was put on two years probation.

The former Justice of the Peace described the conviction and loss of his law license as “a life long sentence.” “I will have to seek another career, with a felony I will not be able to earn what I am used to,” he said, adding that it would be his wife, who he said was on disability, and his aging parents who would suffer the most. Quoting, Michael Pearson and Ed Lavandera.

His wife has been arrested for one count of murder. Her bond has been set at three million dollars; however, there has been no information released by law enforcement sources regarding exactly what role she may have allegedly played in the murders. It appears that she may have been the get-away driver for her husband after he allegedly committed the murder of the Assistant District Attorney outside the courthouse.

It is also believed that she was a passenger in the car when her husband murdered the District Attorney and his wife. Her alleged involvement in these brutal and meticulously planned murders seems very inconsistent with her severe health problems. She is very ill. She suffers from advanced rheumatoid arthritis and chronic fatigue syndrome. Quoting, Tanya Eiserer.

 It remains to be seen whether the Texas Aryan Brotherhood had any part (directly or indirectly) in these brutal slayings, or whether a disgraced ex-public official and his wife acted totally alone. Either way, the brutality of these slayings shows the consequences of those who are intent on committing murder to seek revenge.

~Leonardo G. Renaud

TRANSGENDER, DOES ONE BATHROOM FIT ALL?

“There is no truth. There is only perception.”

~Gustave Flaubert

I may have mentioned in prior posts that I enjoy writing about information that interests me, and hopefully others, because oftentimes the issues I discuss are not emphasized by mainstream media. Since I am not trying to market any particular service, I enjoy the freedom to discuss issues that may be controversial.

I absolutely promise that this post is going to cause some thought provoking discussion. I have already had heated discussions and opinions expressed at home, with my mom, and in my office, and I have not written anything thus far other than this introduction!!!

While skimming through the internet, I found a story about a transgender first-grader.  His name is Coy Mathis. He is six years old. I have to confess that I never knew that a child, at such a young age, could be a transgender person. In my mind, 6 year old children often have very creative minds, childhood quirks, and other developmental issues that cause them to have many different self-perceptions and doubts.  

Can a child believe that he is the opposite sex at the age of 6?

Although, I am somewhat skeptical about a 6 year first-grader being transgender, for the sake of argument, I will rely on the research and information obtained by Coy’s parents. I can only hope and believe that they would not raise a 6 year old child as a transgender person, if they were not 100% sure this is a legitimate fact.

According to Coy’s parents, they sought the assistance of support groups, conducted research, communicated with his pediatrician, and met with a child psychologist. According to all of their fact-finding, Coy’s parents are convinced that they must support Coy’s feelings that he is a girl. 

Quoting, Andrea Rael

Coy was born as a male; however, he identifies and presents himself as a girl. He has been attending Eagleside Elementary School in Fountain, Colorado since 2011.  According to Dan Frosch, Coy is allowed to wear girl’s clothing to school and is referred to as a female, as his parents have requested.

In January of 2013 the school told Coy’s parents that he could no longer use the girl’s bathroom. The school states that it has a bathroom available for Coy in the nurse’s bathroom, the boy’s bathroom, or a staff bathroom. The school’s position is that it has provided reasonable alternatives to Coy, and that there are no Colorado cases which require public schools to permit transgender students to use restrooms of the gender that they believe they are. 

Quoting Attorney W. Kelly Dude, legal counsel for the School District.

The school further believes that Coy’s parents are putting his demands regarding use of the girls’ restrooms over those children (or their parents) who are concerned about a boy using a girls’ bathroom.

For instance, high school students in Mississippi protested after a transgender classmate was permitted to wear women’s clothing. The students felt that their classmate was being given preferential treatment given the school district’s gender-specific dress code for them. 

Quoting, Dan Frosch

Moreover, the School District is concerned that Coy will obviously grow up into a young man, and his use of a girl’s bathroom may increase the girls’ concerns (and those of their parents) that an adolescent male is using the girl’s restroom. It arguably may not be a big deal for a 6 year old to be in a girls’ bathroom, but what about a 16 year old?

The options provided by Coy’s school were not acceptable to Coy’s parents, so they filed a complaint against the school district with the Colorado School District Civil Rights Division. Coy’s parents are attempting to get his school to change its stance. At the moment, Coy is being home schooled with his siblings. Coy’s parents say that they will not return their children to school until Coy is allowed to use the girls’ bathroom.

Quoting, Dan Frosch

Jill Filipovic, in strong defense of Coy’s position, indicates that in the 29 years of using women’s bathrooms, she has never once caught a glimpse of “anyone else’s bare crotch.”

However, this begs the question in my mind, what if a transgender girl who believes she is a male wants to use a male bathroom? Would it be comfortable for her male classmates, or even safe for her? Again, maybe not a big deal at 6 years old, but attitudes about sex can change dramatically as children become adolescents.

Michael D. Silverman, executive director of the Transgender Legal Defense and Education Fund best summarizes the transgender position. He states in pertinent part:

“As we think about education around transgender issues at school, it’s important to remember how much relates to the core mission of schools.”

“In Coy’s case, for instance, [Coy’s] school has the opportunity to teach students a powerful lesson about respect, fair play, tolerance and treating others with kindness. That’s a lesson that all schoolchildren would benefit to learn.”

Colorado offers legal protections for transgender people. There are those who argue that those protections extend to schools, where the mundane rituals of going to the bathroom can be traumatic for transgender students.

Who knows what is right or wrong? There are logical arguments on both sides. Coy’s case is slowly unfolding into a major legal dispute that is going to test the question of whether Colorado’s anti-discrimination laws include the right of a 6 year male to use the girls’ bathroom---and will most likely lead to an avalanche of other cases to be filed depending on the outcome.

~Leonardo G. Renaud

Wrongful Termination Laws

“Most people work just hard enough not to get fired and get paid just enough money not to quit” 

-George Carlin

If you have read the newspaper or watched television over the last few days, you have no doubt heard about a major shootout with law enforcement officers by a disgruntled employee. By all accounts, this employee believed that he was wrongfully terminated due to his reporting to his superiors of improper conduct by a fellow employee.

As a result of this employee’s firing and what he saw as discriminatory action towards him, terrible carnage ensued--- with both law enforcement officers and civilians being brutally killed.

The ultimate end of the entire matter was a hail of bullets, and the former employee dying in a blaze of fire. In the middle of all this chaos, the employee’s former employer stated that it intends to reopen his case to presumably now re-confirm whether his termination was justified.

I have received numerous questions, and opinions surrounding the circumstances of this individual’s termination. I can only shrug my shoulders to understand what mentally happened leading to this shooting rampage. But, it does appear, that a belief of a wrongful termination was the spark that started the raging inferno that followed.

Based on the numerous inquiries referenced above, I am compelled to discuss in general terms, what rights a person may have if they believe they are wrongfully terminated. Additionally, I will discuss what careful steps an employer should take to try and minimize exposure to a wrongful termination claim based on salary/overtime or a claim of discrimination.

Florida Employment Law

Florida is an “at-will” employment state. Employees and employers can terminate employment for any reason. This is a concept that is lost upon many people, and often asked about. People do not realize that an employer does not need “cause” to fire an employee.

That being said, there are some circumstances where it is wrongful for an employer to terminate an employee. Some general reasons for termination of employment that are illegal include, but are not limited to, the following: Termination in violation of federal and state anti-discrimination laws; Termination as a form of sexual harassment; Termination in violation of an oral or written employment agreement; Termination in violation of labor laws, including collective bargaining laws; Termination in retaliation for the employee’s having filed a complaint or claim against the employer.

Some rights provided by Federal law include the following: it is illegal to terminate or discriminate against employees on the basis of race, color, national origin, sex, religion, disability, pregnancy and age. It is also a violation for employers to consider these characteristics with regard to promotions, job assignments, and wages.

In an attempt to protect employees, Florida's constitution and state statutes enforce wrongful termination laws. Employers must also abide by federal laws enforced by the United States Department of Labor, Fair Labor Act, The Civil Rights Act, and the Occupational Safety and Health Administration (OSHA).

Basic Florida Law

Three Florida doctrines define wrongful termination. Florida's Constitution Article I, Section 6, guarantees a person's right to work and join labor unions. Florida's statutes--Chapter 448, sections 448.01 to 448.110—describe employees’ rights and remedies under the law.  Florida's Civil Rights Act of 1992, Chapter 760, Part 1, sections 760.01 to 760.11 prevents employers from discriminating on the basis of race, color, religion, sex, national origin, age, handicap or marital status.

Basic Federal Guidelines

In addition to Florida law, the state must apply the Federal Fair Labor Standards Act of 1938. Managed by the United States Department of Labor, it mandates minimum wages, overtime pay, record keeping, and child labor standards for private businesses and government workers. Military members' reemployment rights are protected by the Veteran Employment and Training Services (VETS), and OSHA's Whistleblower and Non-Retaliation Protection Act protects employees who complain about an unsafe or unhealthy workplace, environmental problems, and public safety hazards and securities fraud.

Quoting, Laurie Senese, “Wrongful Termination Laws in Florida.” 

Wrongful Termination based on Discrimination 

The steps to take in filing a claim based on discrimination are as follows:

File a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission (EEOC). This must be done within 300 days of the incident of discrimination and is a necessary prerequisite before filing a law suit. There are some exceptions to having to file an EEOC claim prior to filing a lawsuit. These should be discussed with your legal counsel.

 

Wait to find out the result of the EEOC investigation. Sometimes the EEOC files a lawsuit on your behalf. The organization weighs many things in its decision, including how bad the violation is as well as what effect a law suit could have on employee’s rights as a whole. There are situations where the EEOC may investigate and find possible evidence of discrimination, but still decide not to sue. If the EEOC decides not to file a lawsuit on your behalf, it will issue a Notice-of-Right-to-Sue.

Quoting, Mike Bell, “How to File for Wrongful Termination in Florida.”

It is highly recommended that you hire a lawyer for a wrongful termination claim based on discrimination because there are very complex state and federal laws that may affect the legal relief you obtain. It could also be that, upon further review of the specific facts of your potential case, your employer may be in violation of multiple state and federal laws.

Damages generally available to wrongfully terminated employees based on discrimination may include back pay, promotion, reinstatement, monetary damages, reasonable accommodations, injunctive relief, punitive damages, and attorney’s fees. 

The Employer’s Perspective

Wrongful termination is defined as the action of firing an employee without a proven and legitimate cause.  Some cases of wrongful termination include firing an employee based on his or her race, gender, religious beliefs, etc.  It’s true that even in cases of legitimate and proven termination, employees may file wrongful termination lawsuits.  Here are some tips on how to avoid wrongful termination suits.

Each state is different when it comes to termination and wrongful termination laws.  It’s important to become familiar with those laws as well as past wrongful termination lawsuits. This knowledge will help employers create policies up front that are consistent and legal.  Studying laws for the purpose of creating termination policies will help keep businesses above board and in line with the applicable laws and cases.  By learning from past wrongful termination cases in other scenarios, employers can gain a finer understanding of what is typically accepted and what is not.

Before termination, most employers dole out disciplinary actions against employees.  Depending upon company policy, your company should give employees at least 3 warnings or follow acceptable procedures before the employee is terminated. 

It’s extremely important to document any disciplinary actions as soon as they take place.  Also, have your employee sign a copy or statement of each and every disciplinary action right away.  This helps shield your company from a wrongful termination suit because it proves that other alternative and reasonable actions were taken in an attempt to remedy a situation before an employee was terminated.

If termination seems like the only reasonable course of action, gather all case files and review them with the Human Resources department, or if none exists, the individual in charge of employee management.  Consider any other available options which may remedy the situation and keep your company from being involved in a wrongful termination suit.

Compare the employee’s file and the events which have earned disciplinary action, with other disciplinary actions against employees in similar situations. Make absolutely sure that your disciplinary actions are always consistent with each employee. Review your state laws and statutes with your lawyer, and any applicable Federal laws, to determine whether termination is an appropriate action.

It cannot be stressed enough that, as a business owner, if you feel as though an employee about to be terminated may file for wrongful termination, absolutely consult with an attorney before making any decisions.  It is important to provide your attorney with all important documents regarding the employee and the reason termination is desired.  Also, in order to minimize claims based on overtime and wages, discuss all the necessary documents that you should keep to defend against a wage or overtime claim, and discuss with your legal counsel what type of records you should be keeping to avoid a claim based on the Fair Labor Standards Act, or a claim based on discrimination.

Quoting, www.LawFirms.com.

We may never know why certain individuals lose touch with reality and resort to tragic and violent actions to express their frustrations with employer decisions.

What we do know and can control, is maneuvering through the many federal and state laws potentially applicable to termination decisions. This must be done very carefully.  It cannot be stressed enough that employment laws are complex, and whether an employee is evaluating filing a wrongful termination lawsuit, or an employer is considering terminating an individual---extreme care must always be taken.

~Leonardo G. Renaud

Federal Marijuana Policy---Up In Smoke?

Before I came here I was confused about this subject. Having listened to your lecture I am still confused.  But on a higher level.

-Enrico Fermi

As with all my posts, this one is especially written not to endorse or criticize any lifestyle choices, but only to share information about a subject that I was recently asked about. Much to my embarrassment, I had absolutely no information that I could provide. Researching the topic opened up a host of interesting issues to consider.  In fact, it is this writer’s opinion that many persons who read this post will be just as surprised as I am by the phenomenon that appears to be sweeping the nation. This phenomenon is the rapidly growing number of states legalizing the use of marijuana.

The issues generally addressed in this post are as follows: Should states allow individuals to legally purchase marijuana for medicinal or recreational purposes? How does state law regarding marijuana reconcile with federal law? What is the status of Florida law regarding the legalization of marijuana?

The States’ Perspective

Although federal law unequivocally prohibits the sale or possession of marijuana, many states have legalized marijuana for medicinal use, such as: cancer, glaucoma, suppressing nausea associated with chemotherapy, mitigating the effects of multiple sclerosis, muscle spasms, seizures, hepatitis C infection, Crohn’s disease, as well as various other chronic and painful medical symptoms.

As of this posting, the following states allow marijuana to be used for medicinal purposes: Alaska, Arizona, California, Colorado, Delaware, Hawaii, Maine, Massachusetts, Michigan, Montana, Nevada, New Jersey New Mexico, Oregon, Rhode Island, Vermont, Washington, as well as the District of Columbia.

In addition to those states (and DC) that permit marijuana to be used for medicinal purposes, Colorado and Washington legalized marijuana for recreational use. 

According to Oregon Congressman Earl Blumenauer, over 2 million people are incarcerated in the United States. This is more than any other country in the world. 

Fifty percent of all federal inmates are there for drug-related crimes. This is a major part of the reason that spending on corrections has increased at a much higher rate than spending on higher education in the last 20 years.

Proponents say that making marijuana legal will create new avenues of tax revenue, and save a tremendous amount of taxpayer money because there are over 660,000 persons in the justice system serving time for simple possession. This costs taxpayers millions of dollars. People are serving time for using a drug that nearly half the nation’s population believes should be legal.

According to NBC Politics.com, a Gallup poll released in October of 2011 found that 50 percent of Americans favor legalizing marijuana. A decade ago, only around 34 percent were in favor.

Proponents point out that very high concentrations of doctors in almost 20 states prescribe marijuana. Simply put, how can so many doctors all be wrong about the medical value of marijuana?

The American Medical Association, American College of Physicians, and the American Nursing Association all support the legalization of medical marijuana.

The Federal Government’s Perspective

Growing, selling, or possessing any amount of marijuana is illegal according to Federal law. There is no such thing as “medical” marijuana under Federal law.

State laws legalizing marijuana for recreational use or other purposes can face federal challenges, because marijuana possession is still a federal crime. 

Pursuant to the Office of National Drug Control, the federal government considers marijuana to be a Schedule I controlled substance under the Controlled Substance Act. As a Schedule I drug, marijuana is classified under the following criteria:

1. The drug has a high potential for abuse.
2. The drug has no currently accepted medical use in treatment in the United States.
3. There is a lack of accepted safety for the use of the drug under medical supervision.

The Office of National Drug Control also advises that the Food and Drug Administration approves medical use of isolated components of the marijuana plant and related synthetic compounds. This includes THC, the active ingredient in marijuana.

The drugs, Marinol, Cesamet, and Sativex all combine THC (or a similar chemical structure) with other ingredients. These drugs, it is argued, provide therapeutic benefits without the “high” from marijuana, and are acceptable to the Federal government.

Marijuana is not allowed on Veterans Administration medical facilities, and no VA-licensed pharmacy may dispense it, regardless of state law. It is explicit VA policy to prohibit VA treatment providers from completing forms seeking recommendations or opinions regarding a Veteran’s participation in a state marijuana program.

The Justice Department has not shown any clear mandate on how it intends to address state laws that have been passed permitting the use, possession, and growth of marijuana. Federal law enforcement officials are concerned that marijuana users in pro-marijuana states are openly ignoring federal law.

According to the New York Times, one option being discussed is for federal prosecutors to file cases against low-level marijuana users and wait for a person to defend the case by arguing that the drug is legal in the state. The Justice Department can then seek to obtain a court ruling that federal law prevails over state law.

More aggressive options being considered, are for the Justice Department to file multiple lawsuits against the pro-marijuana states, seeking to prevent them from setting up any system to regulate or tax marijuana, or completely cut off federal grants to states that refuse to repeal their pro-marijuana laws.

In response to the State of Washington’s passage of marijuana use for recreational purposes, the United States Attorney in Seattle, Jenny A. Durkan, responded as follows: “In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance. Regardless of any changes in state law, growing, selling or possessing any amount of marijuana remains illegal under federal law.”

The Department of Justice’s enforcement’s policy thus far is to not use limited resources to go after small-time users, but, instead, go after large-scale trafficking organizations.  According to the New York Times, this policy is leading to more federal raids on marijuana dispensaries. This is occurring more than pro-marijuana proponents expected.

According to the Office of National Drug Control, “it is not likely an efficient use of federal resources to focus enforcement efforts on individuals with serious illnesses who use marijuana as a part of a recommended treatment regiment consistent with applicable state law or their individual non-commercial caregiver.”

Florida’s Perspective

In Florida, marijuana is still a Schedule I substance. Possession of more than 20 grams is a felony, punishable by up to five years in prison. There is a medical necessity “defense,” for possession, but it cannot be invoked until someone has already been arrested and charged.

Marijuana proponents are failing to make headway with the Florida Legislature.

Using an alternative strategy, efforts are being made by activists to educate the Florida Attorney General regarding the pro-marijuana agenda. Proponents assert that the Florida Attorney General can remove a drug from Schedule I, if she finds that additional testing, approvals, or scientific evidence indicate that controlled substances have a greater potential for beneficial medical use in treatment than was evident when originally classified.

Florida activist, Jodi James, hopes that at least a modest victory may be obtained.

Says James, “In Florida, if we cannot remove the criminal penalties for cannabis, we could at least push the criminal threshold for possession to 2 ounces, instead of the current 20 grams.” “We could make 2 ounces a felony, make the rest a fine and be no more liberal than Texas.”

“When you talk about a hotbed of conservatism or liberalism, we know where Texas falls.”

For the time being, it appears that the states and the Federal government are at a stalemate as to whether Federal law is going to be actively enforced, and how states will respond. No major efforts by the Department of Justice appear to be taking place at the moment, but as history always shows; political agendas are constantly in a state of flux. 

 -Leonardo G. Renaud

Florida Gun Laws; No Time to Misfire

”You cannot invade the mainland United States. There would be a rifle behind each blade of grass.”
~Admiral Isoroku Yamamoto

The following post is a result of numerous questions I have received from readers regarding the status of Florida gun laws.

With all of the mass shootings that have occurred lately by violent and mentally unstable individuals and the massive media and political attention that these unfortunate events have attracted, there are many people who have decided to purchase guns in 2013.

Whether persons should be allowed to carry a concealed weapon, should be able to purchase a certain type of weapon, or certain weapon enhancing equipment, is a debate for a different forum.  It is not my intent to try and persuade or espouse any position regarding gun ownership.

The Stand Your Ground Law

To summarize, a person has the right to use “deadly force and does not have to retreat” if that person reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or to prevent the imminent commission of a forcible felony.

The definition of a “forcible felony” is located at Section 776.08 of the Florida Statutes---but generally includes such acts as: murder; manslaughter; sexual battery; carjacking; aggravated assault and battery; home-invasion; burglary, kidnapping, aggravated stalking, etc.

A person also has the right to use deadly force to protect others if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony. Under these circumstances, a person also does not have a duty to retreat, if the person is in a place where he or she has a right to be.

Neither of the defenses above applies if the defensive shooter is engaged in an unlawful activity or is in a place where they have no right to be at the time of the use of deadly force. For example, if a person is stealing a car from a person’s house, they do not have the defense of the “stand your ground” law.

Review Section 776.031 of the Florida Statutes for additional information regarding your protection and the protection of others.

Gun Ownership

I believe in the summary method of discussing legal issues.  This helps a potential gun purchaser or owner to get the basics. Thereafter, if the owner or potential owner desires to follow up with the specifics of a particular subject area, they can do additional research by reviewing Chapter 790 of the Florida Statues.

The basics of the Florida gun laws covered within the scope of this post are as follows:

Rifles and Shotguns

• Permit to purchase rifles and shotguns? No

• Registration of rifles and shotguns? No

• Licensing of owners of rifles and shotguns? No

• Permit to carry rifles and shotguns? No

Handguns

• Permit to purchase handgun? No

• Registration of handguns? No

• Licensing of owners of handguns? No

• Permit to carry handguns? Yes

Purchase and Possession:

No state permit is required to possess or purchase a rifle, shotgun or handgun.

It is unlawful for:

• Any convicted felon to have in his or her possession any firearm or to carry a concealed weapon unless his civil rights have been restored.

• The following persons to own, possess or use any firearm - drug addicts, alcoholics, mental incompetents, and vagrants.

• For persons to have in their care, custody, possession, or control any firearm or ammunition if the person has been issued a final injunction that is currently in force and effect, restraining that person from committing acts of domestic violence.

• To sell, give, barter, lend or transfer a firearm or other weapon other than an ordinary pocketknife to a minor less than the age of 18 without his parent’s permission, or to any person of unsound mind.

• Any dealer to sell or transfer any firearm, pistol, Springfield rifle or other repeating rifle to a minor.

• A minor less than 18 years of age to possess a firearm, other than an unloaded firearm at his home, unless engaged in lawful activities.

Additional Points Regarding Application for a Firearm:

No licensed gun dealer, manufacturer or importer shall sell or deliver any firearm to another person until he has obtained a completed form from the potential buyer or transferee and received approval from the Department of Law Enforcement by means of a toll-free telephone call.

The Department of Law Enforcement shall destroy records of approval and non-approval within 48 hours after its response.

Exempt from the instant check are licensed dealers, manufacturers, importers, collectors, persons with a concealed carrying license, law enforcement, correctional and correctional probation officers.

Excluding weekends and legal holidays, there is a three-day waiting period to purchase a handgun from a retail establishment. Exempt from the waiting period are concealed weapons permit holders and those trading in another handgun.

Carrying

Unless covered under the exceptions, it is unlawful to openly carry on or about the person any firearm, or to carry a concealed firearm on or about the person without a license.

Exceptions:

• Persons having firearms at their home or place of business.

• Enrolled members of clubs organized for target, skeet, or trapshooting, while at, or going to or from shooting practice.

• Members of clubs organized for collecting antique or modern firearms while at or going to or from exhibitions.

• Persons engaged in fishing, camping or hunting and while going to or from such activity.

• Persons engaged in target shooting under safe conditions and in a safe place or while going to or from such place.

• Persons who are firing weapons for target practice in a safe and secure indoor range.

• Persons traveling by private conveyance if the weapon is securely encased, or in a public conveyance if the weapon is securely encased and not in the person’s manual possession.

• Persons carrying a pistol unloaded and in a secure wrapper from place of purchase to their home or to a place of repair and back.

• Persons engaged in the business of manufacturing, repairing or dealing in firearms.

• Military, law enforcement personnel and private guards while so employed.
 

The Department of Agriculture Shall Issue a License if the Applicant:

• Is at least 21 and a U.S. resident.

• Does not suffer from a physical or mental infirmity which prevents the safe handling of a firearm.

• Is not a convicted felon.

• Has not within a three-year period preceding submission of the application been convicted of a crime of violence or committed for drug abuse or been convicted of a minor drug offense.

• Has not been adjudicated guilty even with a suspended sentence for a felony or misdemeanor crime of domestic violence, unless three years has elapsed since probation or the record is sealed or expunged.

• Is not a chronic or habitual drunkard.

• Is not currently under any injunction restraining the applicant from acts of domestic violence or repeated acts of violence.

• States that he desires a legal means to carry a concealed weapon or firearm for lawful self-defense.

Additional Points Regarding a Concealed Firearm:

It is lawful to possess a concealed firearm for self-defense or other lawful purposes within the interior of a private conveyance, without a license, if the firearm is securely encased or is otherwise not readily accessible for immediate use.

A firearm other than a handgun may be carried anywhere in a private conveyance when such firearm is being carried for a lawful use.

This exemption does not authorize the carrying of a firearm concealed on the person.

An application for a license to carry a handgun concealed is made to the Department of Agriculture. The license is valid for five years and is honored throughout the state. The application shall be completed, under oath, on a form promulgated by the Department of Agriculture and shall include the applicant's name, address, place and date of birth, race, and occupation.

In conclusion, if you are a gun owner, or intend to purchase a gun, I strongly recommend that you review the applicable laws to avoid problems. As always, it is important to note, that laws are in a constant state of change. With the current media and political debates concerning gun laws, I highly recommend that all gun owners, and potential gun owners stay as current as possible with gun laws.

(Some excerpts above are from the NRAILA)

-Leonardo G. Renaud

 

Non-compete agreements; the mystical urban legend

The scars of others should teach us caution. –St. Jerome

As this is a new year filled with resolutions and new hopes, many people are leaving jobs that they dislike, or do not pay them enough.

During my time practicing law, I have had many of the following types of conversations with people:

“Guess what,” “I got hired for a new job.”  “I am going to be working sales, and my territory is Miami-Dade County, Broward County, and Palm Beach County.” “I am really excited because with this amount of territory and customers, I am really going to make some great sales and a lot of money.”

I say something like, “That sounds great, did they make you sign some sort of contract?”

They say, “Yes, I signed a non-compete agreement, but those aren’t enforceable in Florida right?” “I asked my friends in sales and other business, and they all said that non-compete agreements are unenforceable because I have a right to work.” “They can’t keep me from taking care of my family right?”

At this point, my eyes roll back, and I shake my head---as the urban legend of the unenforceable non-compete agreement has reared its ugly head once again.

Please repeat after me, “Non-compete agreements, with some exceptions, are enforceable in Florida.” Where the urban legend of the unenforceability of non-compete agreements comes from, I have no idea, but it is alive and still kicking people really hard.

Section 542.335 of the Florida Statutes contains the elements and framework required for an enforceable non-compete agreement. Like many legal statutes, it can be very confusing for non-lawyers (and lawyers) to understand. There are so many sections, definitions, and subsections, that a person gets lost in a maze trying to figure what they should or should not sign.

In a simplified fashion, the major factors to consider in evaluating whether a non-compete agreement is enforceable, are as follows:

1) Whether the agreement protects a “legitimate business interest?” These can include such things as trade secrets, confidential business information, substantial relationships with prospective or existing customers, goodwill associated with a trademark, geographic location, specific marketing location, and specialized training. A legitimate business interest is an asset that if given to a competing business, would give the new owner of the asset an unfair business advantage;

2) Whether the duration of the agreement is reasonable for a former employee, agent or independent contractor? A duration of six months or less is considered to be presumptively reasonable. A duration of more than two years is considered to be presumptively unreasonable;

3) Whether the geographic scope of the agreement is reasonable? Unfortunately, there is not any language in Section 542.335 defining what a proper geographic limitation is; however, a general rule of thumb is that a court may not be likely to enforce a non-compete agreement for an area where an enforcing party does not do any business;

4)Whether the enforcing party no longer continues in business in the area or line of business that is the subject of the lawsuit to enforce a non-compete agreement? The court may consider this factor as a defense. It must be noted, however; that the court will not consider any individual economic hardship that may be caused to the person against whom enforcement is sought;

5)Whether a court can enter a temporary or permanent injunction enforcing a non-compete agreement? The violation of a non-compete agreement creates a presumption of irreparable injury; thus, a court will enforce a non-compete agreement by any appropriate remedy. An “appropriate remedy” may include a temporary or permanent injunction.

As is always the case, different sets of facts and circumstances may alter a court’s decision regarding the enforceability of a non-compete agreement and what reasonable measure of protection, if any, the court may decide is needed.

I strongly urge all individuals to review employment contract agreements with their lawyer before signing them.  On the flip side, if you are a business owner and want to protect your interests, you should review Section 542.335 (and those cases that have interpreted this statute) with your lawyer before attempting to prepare a non-compete agreement that has a good chance of being found enforceable by a court.

It is my hope that the urban legend of the “unenforceable non-compete agreement” be put to rest.  I unfortunately have seen too many people find out the hard way, after they happily move on to a new job, that they are severely limited because they signed a non-compete agreement.

-Leonard G. Renaud