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Gun and Weapons FAQs

What happens if I fill out the paperwork incorrectly when buying a gun?

Answer:

You could end up in prison or with a federal felony conviction, is what could happen. As a Jacksonville criminal defense lawyer, I have represented those charged with gun crimes. Consider the case of United States v. Pierotti, decided by the Seventh Circuit Court of Appeals on February 3, 2015. A few weeks before the start of the deer-hunting season, David Pierotti decided to buy a .243-caliber Remington rifle at his local Walmart. There, the clerk asked him to sit down at a computer to fill out an electronic version of ATF form 4473, a required step in the firearm-purchase process, and part of the background check. The form poses a series of questions for any potential gun buyer, including one that asks whether the purchaser has ever been convicted of a misdemeanor crime of domestic violence.

Pierotti's initial response to this question was "yes', which was correct. He had, in fact, been convicted of misdemeanor battery against his then-fiancee. When Pierotti clicked on a button to submit his completed form, however, a window popped up advising him to review his answers. He then changed his response to the question about ever having been convicted of misdemeanor battery from "yes" to "no". He submitted the form again and was able to purchase the rifle. Pierotti's incorrect answer prompted the government to prosecute him for violating 18 USC Section 922, which makes it a federal crime to knowingly make false statements in connection with the purchase of a firearm.

But was Pierotti's statement "knowingly" false? At his trial, it was revealed that Pierotti had questioned a friend, who was a local sheriff, as to whether it was legal for him to buy a rifle. Pierotti informed his friend that his probation from the battery charged had expired; his sheriff/friend told him (mistakenly) that since the prior conviction was not for a felony he was "good to go". Pierotti also asked his probation officer the same question and got the same answer. So Pierotti believed he was allowed, by law, to buy a rifle. When the pop-up window appeared after filling out the form on-line, it read "We recommend reviewing Section A at this time to make any changes/corrections that may be necessary". It did not say he was ineligible to buy a gun.

The jury found Pierotti guilty; he was sentenced to six months' house arrest and a year of probation. The court instructed the jury that it could find Pierotti guilty if "he had a strong suspicion that the statement he made was false and that he deliberately avoided the truth". The court also instructed the jury that he did not act knowingly if he was merely mistaken or careless.

Lesson Learned:

One would think, in this case, that Mr. Pierotti was justified in filling out the ATF form the way he did. Afterall, both his sheriff friend and probation officer told him he was legally able to buy a rifle. And the pop up window didn't advise him that he was ineligible to buy a gun (as it should have); instead, it prompted him to simply review the section and make the necessary changes. It's almost to the point where you need to bring a lawyer to the gun store to figure out how to answer the ATF form. When in doubt, pick up the phone and call a competent criminal defense lawyer for advice.


Can I justify shooting someone by standing my ground if I was in fear?

Answer:

Probably, yes. In the nine years since it was passed, Florida's "stand your ground' law is being invoked with unexpected frequency, in ways no one at first imagined. Those who invoke "stand your ground" to avoid prosecution have been very successful. Nearly 70 percent have gone free, as was demonstrated by an analysis of nearly 200 "stand your ground" cases by the Tampa Bay Times in 2012. As a Jacksonville criminal defense lawyer, I have successfully represented individuals charged with murder by using the stand your ground defense.

While people have had the right to defend themselves from a threat as far back as English common law, the key in Florida (and other states) was that a person could not use deadly force it it was reasonably possible for them to retreat or flee. That all changed in 2005 with the passage of Florida Statute 776.013, which states that a person "has no duty to retreat and has the right to stand his or her ground" if he or she thinks deadly force is necessary to prevent death, great bodily harm or the commission of a forcible felony, like robbery. The law only requires the police and the courts to ask three questions in self-defense cases: 1) Did the accused (or defendant) have the right to be there? 2) Was he engaged in a lawful activity? 3) Could he reasonably have been in fear of death or great bodily harm?

If prosecutors press charges , any defendant claiming self defense is now entitled to a "stand your ground" immunity hearing before a judge. At the immunity hearing, a judge must decide, based on the 'preponderance of the evidence', whether to grant immunity. That's a lower burden of proof than 'beyond a reasonable doubt', the threshold prosecutors must meet at trial. The prosecutors must convince the judge that there's enough evidence to go forward to trial. If they fail, a judge can grant immunity from prosecution. Either side can appeal a judge's decision. If immunity is denied, the defendant can still argue at trial they had the right to stand their ground.

The two big "stand your ground" cases of late are Florida v. George Zimmerman and Florida v. Michael Dunn. Although both cases had "stand your ground" elements, neither Zimmerman nor Dunn asserted a "stand your ground" defense or requested "stand your ground" immunity hearings. Rather, both asserted straight self defense. But the "stand your ground" concept played a part in both trials. Zimmerman shot and killed an unarmed black teenager in Sanford, FL. Zimmerman was patrolling in an SUV as a neighborhood watch captain. He saw 17 year old Trayvon Martin, called 911 and reported a "real suspicious guy." Martin started to run and Zimmerman, even though told not to by police dispatch, gave chase on foot. Zimmerman and Martin wrestled and fought on the ground. Zimmerman pulled a 9mm handgun and shot Martin once, killing him. Did Zimmerman have a right to be where he was? Yes, he was patrolling his neighborhood on a crime watch. Was Zimmerman engaged in a lawful activity? At first he was, (patrolling) but arguably, wrestling on the ground and fighting with Martin could be considered an unlawful activity. Was Zimmerman reasonably in fear of death or great bodily harm? Arguably, he was, as he received stitches for a head wound he sustained when Martin (arguably) repeatedly struck Zimmerman's head on the pavement when he was on top of Zimmerman. Zimmerman was able to claim that he was defending himself and the "stand your ground" law enabled him to use deadly force against Martin without retreating. Zimmerman was acquitted by a jury.

Michael Dunn shot an killed an unarmed black teenager in Jacksonville following an argument when Dunn asked four teenagers to turn their loud music down outside a convenience store. Dunn claimed he saw a gun sticking out of the window of the car the teens were in (no gun was recovered). Dunn reacted by firing ten shots at the car the teens were in. One of the young men, Jordan Davis, was struck three times and died. Did Dunn have the right to be in the convenience store parking lot at the time of the shooting? Yes, he did. Was he engaged in a lawful activity? Yes, he was; he was asking the teens to turn their music down. Was Dunn reasonably in fear of death or great bodily harm? No, he was not. Although he claimed to have seen a gun sticking out of the teen's car window, none was recovered. And Dunn shot at the teen's car an excessive number of times (10), probably because he was angry at the teens for not turning their music down, not because he was in fear of his life. Dunn's firing at the teen's car was not reasonable, but reckless, and he was not within his rights to "stand his ground." Dunn was convicted of several counts of attempted second degree murder.

Lesson Learned:

The Florida "stand your ground" defense has made it easier to plead self defense in any criminal case. And with the "stand your ground" defense, it's easier to claim that your actions were justified because you were "reasonably" in fear of death or great bodily harm. Whatever you may think of the "stand your ground law" it is the law in the State of Florida and it has been used effectively by many accused of murder. The Law Office of Landes & Julien has defended people charged with murder and has asserted self defense and "stand your ground" defenses in the Jacksonville, St. Johns, Clay and Nassau County areas. Murder lawyer Landes & Julien, 904-343-4556 always offers a free, no obligation phone consultation.

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