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  1. #1
    Join Date
    Dec 2005
    Location
    south florida, st lucie county
    Posts
    4

    Default False charge of aggravated assault with a deadly weapon

    I am just looking for some opinions here from someone that may have seen something like this before. I am going to be as brief as possible considering the totality of this case so far.

    I am in south florida, I own a small construction business, there was a client of mine that committed insurance fraud last year after the storms. since I was hired to do work that I was never paid for by the way, the insurance company had some questions as to the veracity of this persons 160k insurance claim. I was then informed that I was going to be a witness for the state. I do have knowledge of the crime, and I am also an insurance agent so I have no choice by law. they have this person dead to rights.

    this person and some others decided that they would try to intimidate my wife and I by hanging out in a public area that is quite near my home and harass us and yell threats to us from there.

    My wife went outside one day in our back yard and was shooting a BB gun at a target with my 13 y/o daughter, in a safe manner with a proper backstop the whole 10 yards. on private property.

    these people came around to the back side of the house trespassed on another persons property that was not home and made threats to my wife. she was ambushed we did not know that they were around that day. she yelled for me, and by the time I got into my back yard they were on a cell phones with a 911 dispatcher telling them my wife was shooting at them, she wasnt, and hadnt and had no idea that she was going to be ambushed. I gathered her and my daughter and went in the house as they were all at my back fence screaming threats and profanity.

    as unusual as it was the police responded quickly, because they wer told someone was being shot at.

    long story short, they did their ""investigation"" had us all fill out statements, then threatened to arrest my wife on agg. ass. w/ deadly weapon. i told them to go ahead but I wanted a polygrapher on site when she arrived for processing so that that could be sent to the states att. with the charges, they agreed and then told the other party that was what was going to happen, well when they heard that, they wanted nothing more to do with the whole can of worms they opened and decided no to press anything. HMMMMMM.. the officers siezed my legal air pistol issued no reciept for my property and left.

    that was over 2 months ago, friday night I get a call from a friend of mine in law enforcement in the county, he tells me that there are arrest warrents out for my wife...WHAT!!!!??.. I check into it and sure enough, illegal discharge of a firearm in public, and .... get this.. failure to appear as summoned.. summoned for what?? there was no summons, citation.. nothing.. I know the deputy whose job it is to deliver those.. he has had nor has nothing.
    well I had to take my wife and surrender her at the jail, she was arrested and the bond was $5000.00 bucks, lovely.
    does anyone else see the problems here, and I would like to know if some one can tell me the complete list of civil rights violations that are included. the criminal atty has been retained and I have a civil atty. whos chomping at the bit for this case already.

    also is their any way to force the local barney fife PD to charge these others with the false reports that led to all of this? and are they civily liable for any of the damages according to florida law.. I have been too busy examining statutes and case law on the charges to be able to look at the civil aspect.

    apologize for the long post but there it is, any other details that are needed please ask, Oh and the arrest affidavit to my utter and complete surprise shows my wife as being a "BLACK MALE"

  2. #2
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Criminal Charge

    Ordinarily, the police prepare a report and submit it to a prosecutor, who decides if a charge will be filed. The prosecutor's charging decision is usually protected by a high level of government immunity, making it virtually impossible to sue the police (who simply prepared a report) or the prosecutor (who made a protected decision on the basis of the report). The people who filed the false report, on the other hand, don't have that type of protection.

    In the short-term your wife needs to focus on her criminal case, and beating that charge. Otherwise she will have a hard time in any civil case. But... how hard would this case be to win? These people have a history of harassing you, and then showed up in your back yard? What excuse did they give for being there, and would any reasonable juror believe it?

  3. #3
    Join Date
    Dec 2005
    Location
    south florida, st lucie county
    Posts
    4

    Default

    fortunately for us.. the sovereign immunity that most others enjoy, is something that gets tossed here in florida as soon as it is shown that the charges should not have been made in the first place..

    768.28 Waiver of sovereign immunity in tort actions; recovery limits; limitation on attorney fees; statute of limitations; exclusions; indemnification; risk management programs.--

    (1) In accordance with s. 13, Art. X of the State Constitution, the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act. Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of the employee's office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act. Any such action may be brought in the county where the property in litigation is located or, if the affected agency or subdivision has an office in such county for the transaction of its customary business, where the cause of action accrued. However, any such action against a state university board of trustees shall be brought in the county in which that university's main campus is located or in the county in which the cause of action accrued if the university maintains therein a substantial presence for the transaction of its customary business.

    and yes I do think it is going to be wise to go after the "crew" that ambushed my wife that day.

    im still curious about getting the PD here to arrest them for the false reports.

  4. #4
    Join Date
    Mar 2005
    Location
    Michigan
    Posts
    28,906

    Default False Police Reports

    The first step is to establish that the charges were false. Sometimes, prosecutors will take it upon themselves to press for charges against the accuser once they realize that a bunch of liars have wasted their time with an unjust prosecution.

  5. #5
    Join Date
    Dec 2005
    Location
    south florida, st lucie county
    Posts
    4

    Default

    This makes some interesting reading.. I have made quite a bit of progres in this case just with my research of the law... let me get some opinions on this...


    Number: AGO 2005-40
    Date: July 12, 2005
    Subject: County ordinance re discharge of firearms

    The Honorable Roy Raymond
    Sheriff, Indian River County
    4055 41st Avenue
    Vero Beach, Florida 32960-1808

    RE: FIREARMS AND WEAPONS–COUNTIES–SHERIFFS–no authority for county to enact ordinance prohibiting discharge of firearms. s. 790.33, Fla. Stat.

    Dear Sheriff Raymond:

    You ask substantially the following question:

    May a county pass an ordinance prohibiting the discharge of a firearm in proximity to persons or property when such discharge endangers the health, welfare, and safety of the citizens of such county?

    This office has been advised that Indian River County joins in your request. You have proposed a county ordinance to prohibit the discharge of firearms within 300 yards of a building or public road or right-of-way in order to preserve the life and safety of the general public in Indian River County. The proposed ordinance specifies exceptions.[1] There remains a question, however, as to whether such an ordinance is prohibited by section 790.33, Florida Statutes.

    Section 790.33, Florida Statutes, preempts the field of regulation of firearms and ammunition to the Florida Legislature, as follows:

    "(1) PREEMPTION.– Except as expressly provided by general law, the Legislature hereby declares that it is occupying the whole field of regulation of firearms and ammunition, including the purchase, sale, transfer, taxation, manufacture, ownership, possession, and transportation thereof, to the exclusion of all existing and future county, city, town, or municipal ordinances or regulations relating thereto. Any such existing ordinances are hereby declared null and void. This subsection shall not affect zoning ordinances which encompass firearms businesses along with other businesses. Zoning ordinances which are designed for the purpose of restricting or prohibiting the sale, purchase, transfer, or manufacture of firearms or ammunition as a method of regulating firearms or ammunition are in conflict with this subsection and are prohibited."

    While this office recognizes the need to protect the safety of the county’s citizens against the dangerous discharge of firearms in proximity to people and property, the Legislature has expressed its intent to preempt the regulation of firearms and to provide uniform firearms laws in the state. Any ordinance or regulation attempting to regulate firearms is stated to be null and void when enacted by jurisdictions other than the state or the federal government.[2] Relative to the discharge of firearms, section 790.15(1), Florida Statutes, states:

    "Except as provided in subsection (2) or subsection (3), any person who knowingly discharges a firearm in any public place or on the right-of-way of any paved public road, highway, or street or whosoever knowingly discharges any firearm over the right-of-way of any paved public road, highway, or street or over any occupied premises is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. This section does not apply to a person lawfully defending life or property or performing official duties requiring the discharge of a firearm or to a person discharging a firearm on public roads or properties expressly approved for hunting by the Fish and Wildlife Conservation Commission or Division of Forestry."

    Thus, in addition to expressly preempting the field of firearm regulation to the state, the Legislature has enacted legislation making it a crime to discharge firearms in any public place, with specified exceptions. It is well settled that absent a general law stating otherwise, local governments have no authority to regulate firearms in any manner.[3] Attempts to circumvent this preemption of firearm regulation have not been allowed.[4] Thus, despite the county’s concerns for the health, safety and welfare of its citizens, it may not enact an ordinance regulating the use of firearms.[5]

    Accordingly, it is my opinion that a county ordinance prohibiting the discharge of a firearm in proximity to persons or property when such discharge endangers the health, welfare, and safety of the citizens of such county would be preempted by section 790.33, Florida Statutes.

    Sincerely,

    Charlie Crist
    Attorney General

    CC/tls

    this would be in effect even if there were a firearm involved, which there is not,



    790.25 Lawful ownership, possession, and use of firearms and other weapons.--
    states,

    (j) A person firing weapons for testing or target practice under safe conditions and in a safe place not prohibited by law or going to or from such place;

    notice the text of the statute to include "WEAPONS".. not just firearms, it is clear that the state is including weapons otherwise the text would read "FIREAMS" as it does in other parts of the statute. also,

    (4) CONSTRUCTION.--This act shall be liberally construed to carry out the declaration of policy herein and in favor of the constitutional right to keep and bear arms for lawful purposes. This act is supplemental and additional to existing rights to bear arms now guaranteed by law and decisions of the courts of Florida, and nothing herein shall impair or diminish any of such rights. This act shall supersede any law, ordinance, or regulation in conflict herewith.
    this intent of the state in this part of the statute is clear, as is the opinion of the A.G. of this state, that no county, city or municipality has the authority to make ordinances that are contrary to the state statutes, and if they are made they are null and void, past and present.
    it seems to me that the legislature has specifically included other weapons ie airguns for a reason..
    the city of port saint lucie has no authority to regulate the legal use of firearms or weapons at all. according to the statutes of the state of florida, their ordinance 130.01 is on its face invalid and contrary to the laws of the state of florida.
    obviously if indian river county was prohibited from doing it, the city does not have the power to enact "laws" that are contrary to the laws of the state of florida either.

    I also found some case law on this ..

    the city of miami decided to enact an ordinance requiring trigger locks on all guns in the city limits, they were sued and lost, the appellate court noting that the city had no authority to enact the ordinance. it was a violation of state law

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