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CCW Holder Wrestled to the Ground at Walmart

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wojownik said:
That it was known to Foster is immaterial as well. It may have set Foster off, but the brief exposure while holstering could fall under 790.053 as not being illegal, right?

You are correct. Here is FL Statute 790.053.

http://www.leg.state.fl.us/Statutes...ute&URL=0700-0799/0790/Sections/0790.053.html

790.053 Open carrying of weapons.—
(1) Except as otherwise provided by law and in subsection (2), it is unlawful for any person to openly carry on or about his or her person any firearm or electric weapon or device. It is not a violation of this section for a person licensed to carry a concealed firearm as provided in s. 790.06(1), and who is lawfully carrying a firearm in a concealed manner, to briefly and openly display the firearm to the ordinary sight of another person, unless the firearm is intentionally displayed in an angry or threatening manner, not in necessary self-defense
 
I live in AZ which has no permit requirement for concealed carry. However, I attended a class and obtained a CCW permit primarily for training and reciprocity. I do not feel a need to carry concealed but I am thankful that it is my choice to make.

The Wal-Mart situation at hand is complex. Many elements are at play: race, terrorists, gun violence, etc., have heightened our anxieties and polarized our nation. The lack of leadership from the WH has also exacerbated the issues.

Initially, it is hard to find fault given our country’s state of mind. I will not attempt to try the case here. Mistakes were made. I would like to say that justice will be served in court. But as we have seen, justice is not blind. It caters to those that have the deepest pockets and loudest voices.

No.

It is not.

At all.

You don't get to attack somebody because they are carrying a gun. Period. End of story.
 
Wojownik If you base your decision solely on the visual evidence, then I would agree. But in a court of law, different scenarios will be at play including the mindset of the jury.

Some of the thoughts running through my mind (speculation):

How would the defendant have acted if he saw the gun on the victim’s body while in the store? I do not believe he would have tackled him. The defendant will have an opportunity to influence the jury. A juror’s decision is not always based on the law being black or white.
Some have stated the good Samaritans are also guilty of a crime; I would disagree. The Gabby Gifford’s attack still resonates for many.

I have become cynical of our legal system but I am bound to live within it. Hopefully the outcome of the trail will teach me something.
 
Wojownik If you base your decision solely on the visual evidence then I would agree. But in a court of law, different scenarios will be at play including the mindset of the jury.

Some of the thoughts running through my mind (speculation):

How would the defendant have acted if he saw the gun on the victim’s body while in the store? I do not believe he would have tackled him. The defendant will have an opportunity to influence the jury. A juror’s decision is not always based on the law being black or white.
Some have stated the good Samaritans are also guilty of a crime; I would disagree. The Gabby Gifford’s attack still resonates for many.

I have become cynical of our legal system but I am bound to live within it. Hopefully the outcome of the trial will teach me something.

Speculation over what people might have done differently if the situation were different does not seem useful or relevant.

You don't get to attack somebody because they are carrying a gun. You don't get to attack somebody because you saw them put the gun they are carrying in their waistband/pocket/holster.
 
2ifbyC said:
I have become cynical of our legal system but I am bound to live within it. Hopefully the outcome of the trail will teach me something.

Hopefully ,the jury will find Foster guilty as charged, and confirm that he is a out of control fool or worse. Warp is completely correct.
Mr.Daniels made no mistakes under Florida Law.
 
It will be hard for a bunch of jurors to find fault. The judge will read the law on assault to them and it will be presented that this was clearly an assault by every legal definition. The affirmative defenses which can excuse that assault will be presented and then the jury will try to decide if Foster acted as a reasonable man knowing and believing what he did in that moment, and if his fear/belief rises (in their opinions) to the level of excusing an assault under the law.

The case is trickier than it looks to us. It is a bit like the old conundrum of the cop shooting the kid holding a water gun. Yes, it was a mistake. No, the cop didn't know that at the time and his action was reasonable and necessary given what he believed in that moment. Painful and tragic as the event is, the officer is exonerated.

In this case, Foster will be saying he saw what he believed was a store shooting just about to happen. If it HAD been one about to happen, his actions would make him a hero. He was wrong. But would what he saw convince the jury's "reasonable man" that he needed to commit that assault to stop a tragedy?

It is a problematic case for us, and I certainly hope it goes badly for Foster because it does set a worrisome precedent if a jury does decide seeing a gun that way made Foster's act somehow "reasonable."

Daniels didn't break the law, but that hardly matters. Like the cop and the kid, there is no law against waving a water-pistol around, or even pointing it at someone. But you might be killed and it might be decided that that killing was justified. The fact that you were not breaking the law doesn't make that not so.
 
It will be hard for a bunch of jurors to find fault. The judge will read the law on assault to them and it will be presented that this was clearly an assault by every legal definition. The affirmative defenses which can excuse that assault will be presented and then the jury will try to decide if Foster acted as a reasonable man knowing and believing what he did in that moment, and if his fear/belief rises (in their opinions) to the level of excusing an assault under the law.

The case is trickier than it looks to us. It is a bit like the old conundrum of the cop shooting the kid holding a water gun. Yes, it was a mistake. No, the cop didn't know that at the time and his action was reasonable and necessary given what he believed in that moment. Painful and tragic as the event is, the officer is exonerated.

In this case, Foster will be saying he saw what he believed was a store shooting just about to happen. If it HAD been one about to happen, his actions would make him a hero. He was wrong. But would what he saw convince the jury's "reasonable man" that he needed to commit that assault to stop a tragedy?

It is a problematic case for us, and I certainly hope it goes badly for Foster because it does set a worrisome precedent if a jury does decide seeing a gun that way made Foster's act somehow "reasonable."

Daniels didn't break the law, but that hardly matters. Like the cop and the kid, there is no law against waving a water-pistol around, or even pointing it at someone. But you might be killed and it might be decided that that killing was justified. The fact that you were not breaking the law doesn't make that not so.

I don't think that analogy is worth a darn.

State laws and specifics vary but assaulting/robbing/threatening somebody with what appears to be a firearm is very much against the law.

Unless you are talking about a cop on patrol stopping in some 8 year old's front yard, and then shooting him, during a super soaker water fight.
 
Warp, yeah, I'm not talking about someone holding up a liquor store with a gun that isn't real. I'm talking about the really terrible cases where some kid (or whomever) gets shot because the officer reacted instantly upon seeing someone pop out of somewhere with what he thought was a real gun and made a snap judgment.

My point stands. If the jury decides that this well-meaning fool responded as a reasonable man would when seeing what he was sure in his bones was a murder about to happen, they absolutely COULD exonerate Foster. It will be up to them, and they are just average folks with average folks' opinions and experiences.

It won't be under question whether Foster assaulted Daniels. He did.
It won't be under question whether Daniels was breaking any laws. He wasn't.

The question will be do those jurors think that Foster acted as a reasonable man would knowing and believing what he did at that moment, and whether that decision to assault Daniels can be forgiven under the state's laws, given those reasonable (or unreasonable) beliefs. The prosecution is going to have to work very hard to get it through a bunch of average jurors' heads that seeing someone sticking a gun under their coat and then walking into a store isn't a huge danger sign, worth taking drastic action to avoid or confront, stop, and capture. The prosecution is going to have to argue OUR point of view: that a guy with a gun is a regular, normal, positive thing and Foster SHOULDN'T have been alarmed enough to take violent action.

Honestly, a lot of potential jurors are going to have already decided Foster is a hero. (Check out the various news site "comments" section to see what average folks think about this.)


I sincerely hope they convict him. But I'm not making any bets either way right now.
 
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Posted by Sam1911:
The question will be do those jurors think that Foster acted as a reasonable man would knowing and believing what he did at that moment, and whether that decision to assault Daniels can be forgiven under the state's laws, given those reasonable (or unreasonable) beliefs. The prosecution is going to have to work very hard to get it through a bunch of average jurors' heads that seeing someone sticking a gun under their coat and then walking into a store isn't a huge danger sign, worth taking drastic action to avoid or confront, stop, and capture. The prosecution is going to have to argue OUR point of view: that a guy with a gun is a regular, normal, positive thing and Foster SHOULDN'T have been alarmed enough to take violent action.
That's it in a nutshell--almost.

The question will be whether the jurors believe that the evidence shows, beyond a reasonable doubt, that Foster did not act...(continue with "as a reasonable man" and so on.
 
The question will be whether the jurors believe that the evidence shows, beyond a reasonable doubt, that Foster did not act...(continue with "as a reasonable man" and so on.

I'm reading the news reports on this over lunch (and I probably should find something better to do). HOWEVER, the reporting on this incident is either changing, or the facts not exactly clear.

Some early reporting noted that the assailant saw the victim remove the pistol from his car and holster it.

Other reporting notes that the assailant just saw the pistol in a holster beneath the victim's jacket.

That's a world of difference, IMHO, if the latter version is correct. Would jurors think that Foster acted as a "reasonable man", merely seeing a holstered firearm, not bothering to verify whether the person was licensed, a LEO, federal agent, whatever ...
 
I don't know if it makes a world of difference, but I'll bet it would enter into things on some level.

What would anyone think? It all depends on one's experiences. Does seeing a man with a holstered pistol on his belt look less suspicious than a man picking up a gun and putting it into a holster on his belt?

From a digital "yes/no" viewpoint, of course it doesn't matter. Neither act threatens anyone. But from a social cues and "reading people" viewpoint maybe it does to a lot of folks.

It would probably be hard for most people to articulate WHY there's a difference. Maybe the most eloquent of them could say something like, "A man with a holstered pistol is maybe just some guy going about his day, like a detective or federal agent or something. But a guy getting his gun out of his car and then walking into a store looks like he's got something he's planning to DO with that gun in that store, and that CAN'T be good."

I'd buy that. I'd accept that explanation if someone said they chose to act in the case of one but not the other.

Doesn't make that act correct, or "right," or lawful. But doesn't necessarily make their gut feeling necessarily wrong, either. And might be "reasonable" enough to give Foster a fighting chance to avoid jail.

To be perfectly honest, if I saw a man pull up and park at a WalMart or a Mall or something, and then go get a rifle out of the trunk before heading into the store, I very well may choose to not enter. Might even take it upon myself to stay within sight of him and see what he's up to. I love guns! I love people WITH guns! But, that's an unexpected development which reads as very out of place. A whole lot would depend on body language, but that act would not be perfectly neutral.

Is a pistol a whole lot different in that scenario? Yes, for me, at least somewhat. But why? And what makes any of these things any more suspicious or worrisome than seeing a holstered pistol on someone's belt?

It is intangible. But humans (like other animals) pick up on things all the time instinctively finding what's out of place that might mean danger.

You don't have to break the law to scare someone terribly, and their fear may be perfectly understandable (i.e.-reasonable) to a certain 12 other people pulled from society.


This is not an open-and-shut case at all, and the situation provides a lot of tough things for us all to think about deeply.
 
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To me the whole question hinges on whether he called 911 or acted autonomously. As a juror I would be more inclined to believe he was acting in good faith if he had called the cops first and then acted.

Is it 'reasonable' to assault someone for engaging in a lawful activity?
Is it 'reasonable' to detain someone for engaging in a lawful activity?

The answer, for a uniformed police officer, is no. Here in WA a police officer receiving a report from a Foster describing what he saw would not be reasonable articulable suspicion that a crime is afoot. The courts here have ruled repeatedly that concealed carry is lawful (with a license) but a report that someone was 'seen' concealing doesn't meet the Terry threshold. In other words, the police must assume the concealed carry is lawful, not the other way around.

In the incident described in the OP, (in WA) the police would have contacted Daniels but left the issue of whether he was "seized" ambiguous. Most concealed carries are completely clueless about what their rights are in regards to police encounters, so he would have likely displayed his permit and gotten a good lecture on concealed carry and use of holsters. Event over.
 
As a one-time jury foreman on a murder trial, I fully concur with Sam. Emotions are at play and facts and logic do not win in all cases. It took considerable effort on my part as well as other jury members to drain the emotion out of the equation and to concentrate on the facts and the law. A skillful approach was needed to ensure the dissenter’s dignity was left intact.

As a conservative, I agree with those that point to the facts and the law for the basis of their conclusions. An argument can be made that the defendant acted reasonably. To tout otherwise discounts reality. Decisions are not made solely on prima facie evidence.
 
To me the whole question hinges on whether he called 911 or acted autonomously. As a juror I would be more inclined to believe he was acting in good faith if he had called the cops first and then acted.
I suppose that might come up, but how long does it take to walk from a car to the store entrance? Did Foster have time to make a 911 call, and would it have been realistic for him to assume the police would have time to respond before tragedy struck?

Is it 'reasonable' to assault someone for engaging in a lawful activity?
Is it 'reasonable' to detain someone for engaging in a lawful activity?
It can be, in some extreme and unusual circumstances. And this is certainly one of those oddball cases that test the effectiveness of our law and legal system.

Is it "reasonable" to risk your life to jump on someone who you think is the next James Holmes?

A police officer might be expected (by the jury) to treat the situation quite differently. He might be expected to stop and first think of how many concealed carriers there are in his area, and remember the times he's interacted with lawfully armed citizens.

Some average guy whose read too many news reports of mass murders and terrorist attacks and workplace killings and other public violence? That's why the standard will be that of the "reasonable (average) man" not the "reasonable police officer."



As I said before, I certainly hope that Foster is found guilty. But I'm not placing bets.
 
To me the whole question hinges on whether he called 911 or acted autonomously. As a juror I would be more inclined to believe he was acting in good faith if he had called the cops first and then acted.

Crisis situations don't always allow for calling 911. Even cops involved in such events do not always have the time or ability to radio for help or backup until things have progressed beyond where they had to act.

Is it 'reasonable' to assault someone for engaging in a lawful activity?
Is it 'reasonable' to detain someone for engaging in a lawful activity?

Is it a legal activity? If Daniels took the gun from his car and put it under his coat and headed into Wal-mart to rob it or commit a mass shooting, then it isn't a legal activity.

It is hard to know if it is a legal activity at the time of the event because there is no way to be certain of intent. After the fact, it is a bit easier.

Again, not suggesting Foster should not be charged, but trying to explain how it is that Foster may have decided to act and to act for the right reasons, but completely wrong understanding.
 
The question is not whether the carrier was involved in a lawful activity.

The question is whether a reasonable person, knowing what the "attacker" knew at the time, would conclude, beyond a reasonable doubt, that the attacker did not have reason to believe that his action was immediately necessary to prevent the commission of an imminent forcible felony.

Of course, if there are civil proceedings, the burden of proof will be different.
 
Based on what we have covered in this discussion SO FAR I would vote Not Guilty on criminal charges for all three men and for no liability in a civil lawsuit.

However Foster's mental state or "mens rea" is the factor we don't know. I found a article on the Web that shows the Baker Act listed on his booking sheet. So something has happened after his arrest to raise concerns about his mental condition. This could be a big game changer. Was he acting on the orders from God he was hearing in his head, etc.?

Oliver Wendell Holmes surmises it well when he said "This is a court of law young man, not a court of Justice."

I regret that I can not post the link as I am posting from my cell phone.
 
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If Foster is found not guilty, we can expect to see this in the headlines a few times over, until an off duty cop is attacked or the "good samaritan" get shot in self defense.

Assuming a man has intentions of being the next mass shooter simply because he has a holstered handgun is akin to assuming a woman is a prostitute just because her outfit shows some leg and cleavage.

As far as verdicts, I'd vote guilty for Foster, but not guilty on the other assailants. For all I know, the guy that was handed the pistol was thinking "I dont know what to do with this!" and the game of hot potato ensued.

Had I walked up to that situation, with a man in a chokehold and the "good samaritan" trying to hand off the pistol, I may have done the same thing, assuming I didn't have my daughter with me. Mr Daniels would have got a sincere apology from me afterwards, though...
 
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I've been wrong before (just ask my wife), but I suspect that if this goes to court much of the argument will come down to what is "reasonable" for someone to believe about a gun carrier. A good prosecutor will argue that (1) Florida has had CCW for a very long time, (2) that fact is often brought in front of the public in various new stories, (3) the recent George Zimmerman case could hardly have gone unnoticed by a Florida resident and it would have made it very clear that carrying a concealed weapon is legal, and (4) a reasonable person would therefore not assume that a person with a gun is automatically intent on committing a crime.

With all the CCW publicity here, there is simply no way that a Florida resident cannot be reasonably expected to understand that many people carry guns legally.

I'll bet that this never goes to trial. Foster has a weak case as a defendant and he will be advised not to roll the jury dice. He will plead guilty in exchange for a light or suspended sentence, and any civil suit will be settled out of court.

Unless he's insane.....
 
Posted by Ed N.:
With all the CCW publicity here, there is simply no way that a Florida resident cannot be reasonably expected to understand that many people carry guns legally.
Right.

Surely the man did not attack simply because he saw someone "carrying a gun".

The question is, what was it that apparently made him believe that the man was about to commit a forcible felony?

When someone steps around his truck and walks toward you, he is not breaking the law. When he looks around, perhaps for witnesses, he is not committing a felony. When he places his hand behind his leg, he is not committing a felony. When he ignores your firm words to keep away from you, he is not committing a felony. When he appears to be looking at you in a less than friendly manner, he is not committing a felony.

But if you ignore all of those signs and wait for him to start to commit a crime of violence before starting to protect yourself, it may be too late.

Whatever you do, you may be wrong--or not. The question is , what would a reasonable person have done in similar circumstances?

The same though process applies in the Walmart case.
 
Is it "reasonable" to risk your life to jump on someone who you think is the next James Holmes?

A guy with, as far as you can tell, a single holstered handgun and nothing else? Walking into Walmart? I'm not seeing how that compares to a guy with a rifle with a drum mag, a vest, and more magazines, walking into a movie theater through an atypical entry point, during the movie.

Are we really comparing a guy walking into a movie theater with a loaded rifle in his hands to a guy with a concealed handgun walking into Walmart?

[sarcasm]Apparently 'open carrying' a loaded rifle in your hands really is no different than a holstered handgun, those open carry project guys in Texas had it right all along[/sarcasm]
 
Posted by Ed N.: Right.

Surely the man did not attack simply because he saw someone "carrying a gun".

The question is, what was it that apparently made him believe that the man was about to commit a forcible felony?

When someone steps around his truck and walks toward you, he is not breaking the law. When he looks around, perhaps for witnesses, he is not committing a felony. When he places his hand behind his leg, he is not committing a felony. When he ignores your firm words to keep away from you, he is not committing a felony. When he appears to be looking at you in a less than friendly manner, he is not committing a felony.

But if you ignore all of those signs and wait for him to start to commit a crime of violence before starting to protect yourself, it may be too late.

Whatever you do, you may be wrong--or not. The question is , what would a reasonable person have done in similar circumstances?

The same though process applies in the Walmart case.

You would be surprised how many people out there very loudly proclaim that they fully intend to attack any non-LEO they see carrying a gun, or attempt to disarm them, in order to 'prove a point'. I have no doubt that at least one or two of those guys are not lying.

And in FL, where open carry of any kind is illegal, it is probably rather unusual to see, without-doubt, that a person is carrying. Maybe this man was one of those guys?
 
Point in case here:

Take a good look at the forum we're discussing this in. Think about what we have in common as members here. Then ask yourself how the vast majority of us are LIKELY to respond both to the assault scenario laid out by Foster/Daniels and as jurors in a potential trial of the same.

Now change the forum to another group of people entirely and HONESTLY ask yourselves the same questions. People who many not own or carry firearms. People who may be urban housewives who've never had a need or desire to handle firearms. People who have never worked or served in any type of job which would reasonably expose them to violent encounters. If you answer those questions honestly, then you're NOT going to come up with the same responses.

The vast majority of us here are far, far more pro-RKBA than the average person. We're far, far better versed on the jurisdictional laws in which we may carry weapons for self-defense. We've got a far, far better grasp of what deadly force is and when it may be used.

Not everybody or every group of people has this same collective perspective or experience. It is folly to either expect any other given person or group of people to act as we would or to project what WE would do onto them.

There is no use in debating all the "what-ifs", either. Things played out as they did and altering the circumstances to fit a particular outcome or view is a bad chess move because of that. What if Daniels had been a cop? He wasn't. What if Daniels had shot Foster? He didn't. What if Foster was right and Daniels really WAS a bad guy? He wasn't.

Foster DID assault Daniels. This isn't debatable.
Foster WAS legally carrying his concealed weapon. This isn't debatable.
No criminal act had been committed by Daniels. This isn't debatable.

All that can be questioned in the matter, really, are the perceptions and intents of both parties involved and how those issues relate to the "reasonable person" test under the law.


And the people in the jury? Like it or not, you aren't going to see 12 people from THR sitting in the jury stand.
 
You would be surprised how many people out there very loudly proclaim that they fully intend to attack any non-LEO they see carrying a gun, or attempt to disarm them, in order to 'prove a point'. I have no doubt that at least one or two of those guys are not lying.

Is the point they are trying to prove is that they aren't bulletproof?

That seems like a hobby with a whole bunch of really big downsides.
 
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