Over the past few months, the killing of teenager Trayvon Martin raised a number of legal issues. One of the most discussed is the value of Florida’s Stand Your Ground laws. In essence, the Stand Your Ground law allows one to use force in self-defense when there’s a reasonable threat of another using that same level of force, without a duty to retreat.
Stand Your Ground laws replace the historical “duty to retreat” principle and supplement its exception, the Castle Doctrine. The “duty to retreat” principle requires you to first reasonably attempt to retreat from an attack, but, if retreat proves impossible or dangerous, self-defense becomes a legally justified option. The Castle Doctrine generally holds that, on your own property, there is no legal penalty when you use force against a person whom you reasonably think will inflict serious bodily harm or death to you or others located on that property.
Because of the public uproar over George Zimmerman’s reliance on Florida’s Stand Your Ground law, Governor Rick Scott appointed a task force to examine it and the state’s other gun laws. Florida enacted its Stand Your Ground law in 2005 in response to the NRA-led campaign to put these laws on state statute books. The NRA continued to find success in other states – PA became the 27th state to adopt a version of the law in June 2011. Some key features of our law, found under Title 18, Chapter 5, §505 of the Pennsylvania Consolidated Statutes, are as follows:
• You are allowed to use force against another person when you believe it is immediately necessary in order to protect yourself against the use of force by that other person.
• However, the use of force is not justifiable if:
o You are resisting arrest by a peace officer, although the arrest is unlawful.
o You are resisting force by an occupier of property who is using force to protect that property.
• The use of deadly force is not justifiable if:
o You do not believe that such force is necessary to protect yourself against death, serious bodily injury, kidnapping, or sexual intercourse compelled by force or threat.
o If you provoke the use of force by another with the intent of causing death or serious bodily injury.
o You can avoid the use of such force with complete safety by retreating (the “duty to retreat” principle) unless you are in your dwelling or place of work (the Castle Doctrine).
• And the Stand Your Ground additions: If you are not engaged in a criminal activity, are not in illegal possession of a firearm, and are attacked in any place where you would have a duty to retreat, you have no duty to retreat and the right to stand your ground and use force, including deadly force, if:
o You have a right to be in the place you were attacked.
o You believe it is immediately necessary to use force to protect yourself against death, serious bodily injury, kidnapping, or sexual intercourse by force or threat.
o The person against whom you use force displays or uses a firearm, a replica of a firearm, or any other weapon readily or apparently capable of lethal use.
Pennsylvania’s law is similar to the Florida statute. However, last month House Judiciary Committee Counsel David McGlaughlin stated that, in Pennsylvania, a shooter like George Zimmerman would likely have been immediately arrested. Why? See the second and third bullet points of the Stand Your Ground additions to the statute, relayed above: Zimmerman pursued Trayvon although told not to by the 911 dispatcher, and Trayvon was unarmed.
But does our stricter law still justify the increased violence it condones?
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In light of the recent shootings in Tuscon, gun rights and the second amendment are once again at the forefront of political discussion. The question on everyone’s mind is how was this crazy person allowed to just waltz into Walmart, buy his ammo and take out 6 innocent victims.
With second amendment rights, supportive and opposing views are some of the loudest and most divisive in this country. It’s a go-to topic for Republicans trying to ignite their party and it remains a traditionally conservative rallying point.
We all know that in the US, citizens have the right to bear arms but what are the restrictions imposed on that right by the Commonwealth of Pennsylvania?
In PA, you are free to own a gun and keep it in your home with basically little or no regulation by the state. You do not need a license to keep a gun in your home. Of course, these rules change a bit if you happen to be a convicted felon.
If you want to carry a concealed weapon, either on your person or in your vehicle, then of course you must apply for a permit to carry a concealed weapon in your county of residence. In order to be eligible for a permit, you must not have committed a various list of crimes (mostly violent in nature), you must not have been involuntarily committed, you must be a US citizen, you must be 21 years of age are among the requirements.
If you are caught carrying a concealed weapon and you do not have a permit, you could be facing felony charges with very severe penalties. If you are a convicted felon who is caught with a weapon, you will be looking at…well you know the drill. You are a convicted felon after all.
Filed under: Constitutional Rights, Criminal Law, Pennsylvania Law | Leave a Comment
The Problem of Prison Overcrowding
Record numbers of Americans are currently serving prison sentences and the upward trend is showing no signs of slowing down. The latest statistics published by the Bureau of Justice Statistics report that over 7.3 million people were on probation, parole or were incarcerated in 2008. That means 1 in every 31 adults in the United States is serving a sentence. In 1982, the stats were a lot different with 1 of 77 adults in the correctional system.
Prison overcrowding has become such a major issue for the criminal justice system, a case stemming from California’s prison population is being tried before the US Supreme Court. The case involves a decision by a lower federal court which ordered the state of California to reduce its prison population by nearly 50,000 inmates within the next 24 months.
California is not alone in its dilemma. In Pennsylvania, the Department of Corrections reports that as of October 2010, state correctional facilities are operating at an average 110% capacity. Earlier this year, Pennsylvania shipped over 2100 prisoners to facilities in Virginia and Michigan in a controversial effort to deal with overcrowding.
So why are so many of our citizens heading to jail? While there are many theories attempting to answer this question, it is most likely a combination of factors which make it an even tougher problem to tackle. In recent years, law enforcement has been cracking down on low level offenses (eg: DUI, minor drug crimes, petty theft) and the rest of criminal justice system has done little to keep up. Over the last few decades, many states have passed mandatory sentencing guidelines for certain types of crimes, even for first offenders. Disproporionate numbers of minorities and those with mental handicaps are also being housed amongst our prison population.
The “why” is only the root of the problem. It’s the effect on the prisoners that is truly astounding. The range of adverse effects of overcrowding are too numerous for this short blog entry, so I will name a few of what I consider the most serious.
Among the obvious effects of aggression and higher rates of illness, overcrowding also leads to recidivism, higher suicide rates, untreated mental illness, idleness, and increased disciplinary sanctions. These factors and many others create a vicious cycle for the inmates and one that is hard to stop.
While these blog entries are not written with the intent to solve the world’s problems but rather to draw attention to certain subjects, I do believe the first step to solving this particular problem is to raise awareness of it. Prison overcrowding has been eating away at the resources of our criminal justice system for so many years that there is no easy fix at this point. In all likleihood, the solution lies far in advance of a prisoner’s first steps on the bridge of sighs.
Filed under: Allegheny County, Allegheny County Jail, Constitutional Rights, Court Practices, Criminal Law, Pennsylvania Law, Pittsburgh, Prison | Leave a Comment
“Super Drunk” is legalese for having a BAC over 0.17 percent (at least it is in the state of Michigan). Much ado has been made by the media for Michigan’s newest drunk driving law which took effect in October. The “super drunk” legislation has made headlines for being amongst the toughest drunk driving laws in the nation. Proponents of the law believe that the stiff penalties will deter first time offenders. Only time will tell.
With all this attention on the “super drunk” law, I’ve been getting a lot of questions about the DUI laws in Pennsylvania and I must say they are not all that different.
In Pennsylvania, there is a three-tiered system when it comes to driving under the influence:
Tier One (.08 to .099)
Tier Two (.10 to .159 BAC)
Highest BAC (.16 and higher BAC)
As a first-time offender, if you are super drunk (.16 percent and higher) you are looking at a mandatory minimum of 72 hours in jail, $1000 fine and a 12 month license suspension. For second-time super drunk offenders the penalties increase to 90 days incarceration, $1500 fine, and an 18 month license suspension.
You can also be charged with a DUI even if you refuse to consent to testing for alcohol or drugs. Pennsylvania has an Implied Consent law, whereby your application for an operator’s license and the state’s decision to issue you a license establishes by law (not you signing a form) that you “consent” to have your blood drawn and tested if stopped lawfully for a DUI. This is very important because, if you are stopped for DUI and you refuse to take one or more chemical tests of breath, blood or urine, your Pennsylvania driver’s license will automatically be suspended for at least one year in addition to any other sentence. Even if you are later found innocent of DUI, you will still receive a one year suspension, and if you are later found guilty of DUI, your license may be suspended for up to two and a half years depening on your BAC at time of arrest. If you refuse testing and have a prior DUI or refusal to test, you may receive an 18 month suspension for the refusal and an 18 month suspension for the DUI, for a total suspension of three years.
The bottom line is being super drunk, while fun, may come with a hefty pricetag, jail time and a lengthy license suspension. If you have been arrested for DUI in Allegheny County, give our law firm a call right away to ensure your rights are protected.
For a full discussion of Pennsylvania DUI laws and penalties, please visit our website at www.pghdefense.com.
Filed under: Allegheny County, Constitutional Rights, Criminal Law, DUI, Pennsylvania Law, Pittsburgh | 1 Comment
One of my many pet peeves is when burglary and robbery are used interchangeably. I realize this shouldn’t bother me as much as it does, but it happens so frequently in my line of work I seem to grow more angry with every botched statement. Here is one example in yesterday’s Pittsburgh Post-Gazette of the words being used incorrectly.
According to Black’s Law Dictionary, burglary is the criminal offense of breaking and entering into another’s dwelling with the intent to commit a felony. A robbery is the illegal taking of property from the person of another. You can burglarize a building, but not a person. You would rob a person, but not a building. Pretty easy stuff.
So why then does the Hamburglar bear that name when he is clearly robbing others of hamburgers. I get the fact that burglary and burger share many of the same letters, so perhaps his name was created using artistic license. On the other hand, maybe his creators were aware that robbery is a much more serious crime than burglary and used this fact to make the Hamburglar seem like less of a felon (which still wouldn’t explain his choice of clothing).
In the Commonwealth of Pennsylvania, we have sentencing guidelines in order to hand out more uniform sentences throughout the state. The guideline sentence is a combination of an offense gravity score of the crime committed and the defendant’s prior record score. The offense gravity score (OGS) for a burglary in PA ranges from a 5-7 depending on the circumstances of the case. The OGS for robbery ranges from a 5-12. Even with no prior criminal history, a person convicted of the most serious form of burglary is looking at a minimum sentence of 6 months. The same person convicted of the most serious charge of robbery is looking at a 4 year minimum sentence. (this is not intended to be legal advice and should not be substituted for retaining an attorney)
The hamburglar is clearly looking at some serious prison time.
Filed under: Allegheny County, Criminal Law, Pennsylvania Law, Pittsburgh | Leave a Comment
CSI, Law and Order, Detroit 1-8-7, Criminal Minds, JAG, and the list goes on and on. There seems to be no shortage of legal dramas these days. While these programs are intended for entertainment, the viewers are coming away with much more than a Thursday evening spent in front of the tube. These programs are creating a glamourized version of the truth which leads the public to hold false expectations of the criminal justice system.
I will never forget one of my first jury trials as a prosecutor that involved an actor carrying a firearm without a valid permit. I thought the case was open and shut. The actor was stopped by police for a minor traffic violation and during the stop the officers recovered a .45 from the vehicle. The actor admitted the gun was his at the time, and told the officer he did not have a permit.
When the case came up for trial, the defendant decided that the gun wasn’t his after all. Doesn’t really matter because the crime of carrying a firearm without a license is a crime of possession, not ownership. So we went through with a jury trial. I thought I couldn’t lose.
When the jury returned a verdict of not guilty, I almost fell out of my chair. I thought they acquitted him because of something I did wrong, or perhaps they just didn’t like me. It couldn’t have been the evidence. I had more than enough evidence to convict. So I waited until after the judge’s final instructions and requested to speak with the jurors. I needed to know what I did wrong.
The jurors were very candid with me. They thought this guy was guilty too. They liked the way I put the case on. They disliked the other attorney’s approach and disliked the defendant in general. So what the hell happened?
The jurors wanted to see fingerprints on the gun. No fingerprints, no conviction. They were shocked when I failed to produce such compelling evidence. The arresting officer even testified that weapons are not examined for fingerprints for this type of crime. Ever.
I asked the jury why they would think that Allegheny County, with its limited budget and overburdened crime lab, would examine a little pistol for fingerprints for a non-violent offense when the gun was sitting right next to the defendant in plain view of the police. “Because that’s how they do it on TV.”
It’s not just juries that have fallen ill with CSI Syndrome. Victims and defendants have the same high expectations, with no regard for the realities of the criminal justice system. In reality, no investigation is ever completed in an hour, forensics doesn’t get involved with every single crime, the actors are not that physically attractive (sometimes they’re even hideous), and witnesses rarely confess to crimes on the stand.
Because working within the criminal system wasn’t challenging enough, now prosecutors, judges, defense attorneys, victim advocates, and the like have to find creative ways to lower expectations. So next time you’re summoned for jury duty, prepare for it by watching Jersey Shore.
Filed under: Court Practices, Criminal Law | 1 Comment
In America, we enjoy and take for granted many freedoms bestowed upon us by our Founding Fathers. One of those freedoms is the right to a speedy trial. I doubt many of us have even given it a second thought until the recent situation in Iran involving three American hikers.
On July 31, 2009, Sarah Shourd, Shane Bauer, and Joshua Fattal were detained by Iranian border guards when they allegedly crossed into Iranian territory over an unmarked border. Bauer and Fattal are still being held, and Shourd was released today on $500,000 bail. It has been well over a year since the alleged trespassing occurred and it is still unclear whether or not any of the hikers have even been charged with a crime. What is clear, is that these three American citizens have been held without bail for 410 days based upon suspicion with no end in sight. It appears that Iran does not subscribe to the notion of the right to a speedy trial. If this isn’t enough to make you grateful to live in the United States then nothing will.
Curious about the speedy trial rules in the US?
If you are lucky enough to live in Pennsylvania, the Commonwealth has 365 days to prosecute your case from the date the charges are filed. If your case is not brought forward for trial within that time frame, then the rules call for dismissal of the charges.
If you are detained on those charges, the state has 180 days to bring your case forward. If your case is not brought to trial in that time, the rules call for your release from detention and then the state will have another 180 days to try the case.
Of course cases drag on for longer than one year. This is usually due to court postponements. The speedy trial clock stops every time the defense takes a postponement or delays the trial.
To learn more, or to decide if the Commonwealth has run out of time on your case, please visit my website at www.pghdefense.com
Filed under: Constitutional Rights, Court Practices, Criminal Law, Pennsylvania Law | 1 Comment