Hardesty, Tyde, Green & Ashton, P.A. blog

On June 26, 2008 the United States Supreme Court decided a case which supports the United States citizen's right to keep and bear arms under the Second Amendment to the United States Constitution.

The case name is DISTRICT OF COLUMBIA ET AL. v. HELLER. A brief summary from the Court's slip opinion follows:

District of Columbia law bans handgun possession by making it a crime to carry an unregistered firearm and prohibiting the registration of handguns; provides separately that no person may carry an unlicensed handgun, but authorizes the police chief to issue 1-year licenses; and requires residents to keep lawfully owned firearms unloaded and disassembled or bound by a trigger lock or similar device.

Respondent Heller, a D. C. special policeman, applied to register a handgun he wished to keep at home, but the District refused. He filed this suit seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on handgun registration, the licensing requirement insofar as it prohibits carrying an unlicensed firearm in the home, and the trigger-lock requirement insofar as it prohibits the use of functional firearms in the home. The District Court dismissed
the suit, but the D. C. Circuit reversed, holding that the Second Amendment protects an individual’s right to possess firearms and that the city’s total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right.

The United States Supreme Court held:

1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.

(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved.

(c) The Court’s interpretation is confirmed by analogous armsbearing rights in state constitutions that preceded and immediately followed the Second Amendment.

(d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms.

(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion.

(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individual rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes.

2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition
of prohibiting the carrying of dangerous and unusual weapons.

3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the
lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement.
Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.


SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a dissenting opinion, in which STEVENS,
SOUTER, and GINSBURG, JJ., joined.

For more information contact us by clicking here.

Driver fatigue and the pressure of delivering cargo on time can lead to tragic results. Alvin Wilkerson a driver for Crete, a national commercial carrier based in Nebraska had not slept in 34 hours and was being told to deliver another load when the accident happened. The result was that Wilkerson's semi tractor trailer slammed into the car stopped ahead and killed 7 children all brothers and sisters. Alvin Wilkerson plead guilty to vehicular manslaughter and is serving a lengthy prison sentence. Crete truck lines is under investigation for both criminal negligence and civil negligence. The communication between Wilkerson and the company dispatcher has come under scrutiny along with the driver logs and schedules. Driver fatigue and delivery pressure can lead to this terrible result. This appears to be a truck accident that was completely avoidable. Truck safety regulations must be followed to prevent this type of tragedy.

To read more see:
http://jacksonville.com/tu-online/stories/062908/met_297156300.shtml

Recently, The New England Journal of Medicine reported the results of a 5 year study involving hypothermia therapy for traumatically brain injured children. This therapy involves cooling the body of the injured patient down to just over 90 degrees (Fahrenheit) for a period of 24 hours immediately following the brain injury and then slowly rewarming it to normal temperature. Animal studies had indicated this technique improved survival and neurologic outcome.

Unfortunately, the recent NEJM study and other studies involving adults do not support the use of this therapy. In fact, studies of both adults and children have indicated that use of hypothermia therapy in cases of traumatic brain injury have actually reduced survival and resulted in worse neurologic outcomes. While some studies have indicated that the therapy may be of benefit in cases of adults or newborns who have suffered hypoxic/ischemic (lack of oxygen or blood) brain injury, it has not been shown to benefit those suffering traumatic head injuries.

For more information click here to contact us.

On April 17, 2008 we wrote about the legal battle our firm is involved with through the St. Johns Riverkeeper to save our community's water supply.

You may recall that the St. Johns River Water Management District (SJRWMD) recently permitted Seminole County to withdraw millions of gallons of water per day from the St. Johns River which has placed it in the top ten most endangered rivers in the United States.

In March 2008 the St. Johns Riverkeeper filed for an administrative hearing to challenge the permit application by Seminole County to withdraw 5.5 million gallons of water a day at its proposed Yankee Lake facility for irrigation purposes.

Many counties, cities, and utilities in Central Florida have tried to intervene on behalf of Seminole County. As a result, St. Johns Riverkeeper filed motions to dismiss the petitions to intervene filed by the Tohopekaliga Water Authority, Osceola County, the City of Cocoa and the City of Sanford.

On June 20th, Judge Johnston dismissed the petitions to intervene filed by the Tohopekaliga Water Authority, Osceola County, and the City of Sanford due to a lack of standing.

Additionally, we have learned that last week Putnam County Environmental Council, Inc. filed a legal challenge to stop the St. Johns River Water Management District from issuing permits to Central Florida communities and utilities for withdrawals from the St. Johns and Ocklawaha Rivers. PCEC contends that surface waters from the St. Johns River and Ocklawaha don't qualify as "alternative water supply" sources as defined by state law. They are also asking the Florida Land and Water Adjudicatory Commission, that consists of the Governor and three Cabinet members, to review the District's water supply plan.

A new law in Florida lets landlords put a provision into residential rental agreements that the fee for the tenant breaking the lease will be a flat amount equal to up to two months rent.

This provision must be inserted at lease-signing and even if the landlord offers this option the tenant may refuse it. If the tenant refuses the option and breaks the lease, the tenant will owe rent to the landlord based on how long it takes to re-rent the property. If the property is rented quickly the tenant's expenses for breaking the lease could be less than two months rent, but, if the property remains vacant for longer than two months, the tenant would pay more than if he had agreed to the flat rate for breaking the lease.

The law is not retroactive to existing leases and landlords do not have to give tenants the option of the two months "liquidated damages" provision. Additionally, electing this provision does not insulate tenants from other terms of the lease such as charges they may owe the landlord for unpaid rent or for damage to the property.

In April 2007 the Florida Board of Executive Clemency introduced a change to the Rules of Executive Clemency that provided for the restoration of some civil rights for certain ex-offenders.

The latest news reports indicate that approximately 115,000 felons in Florida have had certain civil rights restored pursuant to the rule change.

Some theories proposed for the new rule were that people who had paid their debt to society should be considered to have paid the debt "in full" and that ex-offenders who have the opportunity to participate in the democratic process and be gainfully employed are less likely to re-offend.

The civil rights of ex-offenders who have committed less severe crimes, and meet the following requirements, qualify for approval without a hearing: those who have completed their sentence as well as all conditions of supervision, including probation; have no pending criminal charges; have paid all victim restitution; and have not committed certain severe offenses or qualify as a habitual violent offender, violent career criminal or sexual predator.

Also, certain offenders who have committed severe crimes may have their civil rights restored by means of a Preliminary Review List, without the need for a full hearing.

A certificate is mailed to individuals who meet the criteria for automatic approval for restoration of civil rights. Those who are not eligible for automatic approval may continue to apply for restoration by contacting the Office of Executive Clemency.

Under these rules, the rights being restored are: voting rights, the right to serve on a jury, the right to apply for occupational licenses and the right to hold public office.

The right to possess guns is NOT restored under this rule.

As gasoline prices soar many drivers are turning to smaller vehicles to save money on their gas bill. Mopeds and motorcycles are gaining popularity with economy minded drivers.

As attorneys who handle injury cases, including motorcycle accidents, we have noticed an increase in accidents involving motorcycles. Just last week our local news reported a 37.5% increase in trauma treatment from motorcycle accidents.

Often the insurance requirements for cars and motorcycles is different.

For example, in Florida, an automobile driver is required to carry Personal Injury Protection (PIP), however, a motorcycle driver is not. In simple terms, Personal Injury Protection acts as a mini health insurance policy which provides payment for medical care for the holder of the policy if they are injured in an automobile accident. PIP does not cover injuries while on a motorcycle. Medical care for injured motorcyclists is often paid by their health insurance policy, if they have one. Many times those without health insurance are hurt, unable to work, have no way to pay their medical bills or seek additional treatment they need.

Bikers also need to make sure they have enough insurance coverage to repair or replace their damaged motorcycle. Unfortunately, there are many uninsured/underinsured drivers on the road. When they cause an accident the party who is not at fault must turn to their own insurance for payment of medical bills and payment to repair the damage to their own vehicle.

Some bikers carry a separate motorcycle insurance policy that includes bodily injury, comprehensive, collision, and uninsured motorist coverage to protect them. If you ride a motorcycle make sure you are properly covered.

Often motorcycle accidents are an insurance nightmare for the biker. If you find yourself faced with this problem, experienced attorneys can help!

With gas prices hovering above $4.00, people may turn to two-wheeled vehicles such as motorcycles or scooters in an effort to save money. Many motorcycles get between 50 and 70 MPG, while scooters approach 95 MPG.

However, as many people are probably aware, motorcycles and other two-wheeled vehicles are inherently more dangerous than cars. While approximately twenty percent of automobile accidents involve injury or death, this figure is about eighty percent for motorcycle accidents. Unlike automobiles, these vehicles offer no protection between you and the road.

Here are a few pointers to help you keep safe if you choose to hit the road on a motorcycle or scooter:

-- Always wear a helmet. They are your only defense against serious head injuries.

-- Never drink alcohol before operating a motorcycle.

-- Watch for hazards in the road such as large cracks, holes, and bumps.

-- Make sure your headlight is on every time you ride.

-- Always check for vehicles coming from side streets or driveways.

Click here for more information about motorcycle safety.

SPECT (Single Photon Emission Computerized Tomography) scan is a sophisticated nuclear medicine study of blood flow in the brain which provides evidence of brain metabolic activity. In a SPECT scan study, the patient receives an intravenous injection of contrast solution. The patient's brain is then scanned by a computerized camera which rotates around the patient's head taking x-ray type photos, much like a CT scanner. The multiple snapshots of the brain taken by the SPECT scan enable the radiologist to determine where the contrast solution has circulated in the brain and also allow him to "map" the blood flow and metabolism in various parts of the brain. This is important because we know that injury to the brain frequently affects blood flow and metabolism in the injured areas.

While MRIs and CT scans can show static images of the brain which can be useful in demonstrating significant bleeding or injury to brain cells, they are frequently not very sensitive in showing injury to brain cell axons or neurons which often occur in mild brain injury cases. Simply because the MRI or CT scan is "negative" for brain damage does not mean that injury has not occurred. The value of SPECT scans in diagnosing brain injury is that they can show how areas of the brain are functioning which MRIs and CT scans cannot.

If you have suffered significant head trauma which causes continuing symptoms such as memory loss, confusion, change in personality, etc., it is important to have your case evaluated by attorneys with significant experience in brain damage claims.

Over 4 million Social Security and Supplemental Security Income recipients who do not have bank accounts will now have the option of having their monthly benefit transferred to a prepaid MasterCard debit card instead of receiving a paper check.

According to the Treasury Department this means that those without bank accounts will not have to use check-cashing facilities or carry large sums of cash.

The cards can be used like regular debit cards. Recipients may get cash, pay bills and make purchases anywhere MasterCard debit cards are used. The cards will be FDIC-insured and each card will have its own PIN number for use at ATMs and stores. The card can also be replaced if it is lost or stolen.

Similar to those who have their Social Security benefits directly deposited into their bank accounts, debit card recipients will no longer have to worry about their checks being lost or stolen because their benefit will transfer to their card automatically at the first of the month.

While there are no sign-up fees, some transactions like ATM withdrawls will have a cost. Suggested methods by the Treasury Department to get around such costs include getting cash back with purchases at stores or making free cash withdrawls through bank or credit union tellers.

The Florida legislature passed a sweeping new statute that will probably dramatically change “custody" and "visitation” in our state. It was presented to the governor on May 19, 2008 and was signed into law last week by the governor. The new law takes effect October 1, 2008.

The main change is that the new law completely does away with the terms "custody" and "visitation." Now, parties, their attorneys and the courts will devise “parenting plans” which will spell out how parents are to parent and “timeshare” the children post-divorce.

Family law practitioners do not know how these changes will affect other areas of family law.

Questions that will be answered with time include whether changes to child support calculations will come in 2009; will head of household status and exemptions be affected; and, is this statute intended to be merely a label switching exercise or is the old “non-custodial/ secondary physical residence” parent now supposed to be more involved and have greater (“real”) rights?

Changes in the law are always challenging. Appeals of trial court decisions will provide "case law" that will interpret the new statute. Please check back for more information regarding this law change as it becomes available.

While we are all aware of the dangers of driving while intoxicated, few consider the problems of driving while drowsy. However, many of the characteristics of drowsy driving are similar to those of drunk driving.

The U.S. National Highway Traffic Safety Administration estimates that approximately 100,000 accidents a year are the result of drowsy driving. These accidents cause around 1,500 deaths, 71,000 injuries, and $12.5 billion in monetary losses.

The number one cause of drowsy driving is inadequate sleep time. However, there are numerous other causes including sleep disorders (sleep apnea, RLS, etc.), medications or drugs, and even alcohol. Other factors include a person’s age (young people are more likely to drive while drowsy) and their work schedule.

There are several ways to help combat the problem of driving while drowsy. The most effective is, of course, getting more sleep. Other solutions could include planning breaks on long road trips or simply drinking a cup of coffee.

For more information, visit AAA Foundation:

Judicial polls have been used for years to evaluate Florida's elected judges. For the first time a survey will be sent to members of the Florida Bar's Worker's Compensation Section seeking an evaluation of the State's Judges of Compensation Claims and Claims Mediators.

The poll will ask lawyers how many years they have been in practice and in what area of the state he or she primarily practices. The lawyers may then answer questions regarding the judges and mediators they have practiced before.

The questions ask about the judges and mediators knowledge of the law; courtesy toward parties, lawyers and witnesses; promptness; preparation; patience; and related matters. Those polled will be asked whether they have substantial, moderate, or minimal experience with the judges and mediators they rate.

The judges and mediators rated will know the ratings and suggestions but will not know who the individual attorney is who responded to the poll.

Labels: judges, Worker's Compensation

Florida's new law, officially entitled the “Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008,” will take effect July 1, 2008. This new law only applies to licensed concealed weapons holders and nothing restricts an employer from prohibiting non concealed weapons or those guns belonging to owners who do not have a valid permit. The law also prohibits both public and private employers from restricting customers, employees,or invitees from “possessing any legally owned firearm when such firearm is lawfully possessed and locked inside a private motor vehicle in a parking lot.” The law further prohibits employers from asking employees, customers and invitees whether they have firearms in their cars and prohibits them from searching the cars for firearms. Employers cannot take any action against customers, employees or invitees concerning the possession of a firearm stored in a car. Employers are also prohibited from conditioning employment upon a prospective employee’s holding or not holding a concealed weapons license. They are also banned from conditioning employment upon the applicant’s agreement to keep his firearm somewhere other than on the employer’s premises. Employers cannot prohibit employees,customers and invitees from bringing their cars into the employers’parking lot because of a legally possessed concealed weapon. Employers cannot terminate or otherwise discriminate against an employee for “exercising his or her constitutional right to keep and bear arms or for exercising the right of self-defense” as long as the firearm is not exhibited on company property for anything other than “defensive purposes.” The law does provide immunity for employers for civil actions “based on actions or inactions taken in compliance with this section.” It also provides for a private civil action for “reasonable personal costs and losses,” injunctive relief and attorney fees, and costs for noncompliance with the law, and provides for Attorney General enforcement. The law lists several places of employment excepted from the law’s requirements, including schools, correctional institutions, nuclear-powered electric generation facilities, national defense, aerospace and homeland security employers, and explosive materials employers.