New Florida Law Restricting Private Drone Use

Florida's governor recently signed S.B. 766, a bill that expands and clarifies restrictions on drone use listed in section 934.50, Florida Statutes. The full text of the bill is available here. Reports on the passage of the bill are available here, here, and here. 

Prior to the passage of this bill, section 934.50 contained a wide restriction on government drone use. 934.50 prohibited the use of drones by law enforcement agencies to collect evidence except in cases where a warrant was first obtained, there was a high risk of a terrorist attack, or there was a risk of imminent harm to somebody. Those exceptions still exist after the passage of S.B. 766.

S.B. 766 is notable because of the restrictions it places on private drone use. The bill adds subsection 934.50(3)(b), which states:

(b) A person, a state agency, or a political subdivision as defined in s. 11.45 may not use a drone equipped with an imaging device to record an image of privately owned real property or of the owner, tenant, occupant, invitee, or licensee of such property with the intent to conduct surveillance on the individual or property captured in the image in violation of such person’s reasonable expectation of privacy without his or her written consent. For purposes of this section, a person is presumed to have a reasonable expectation of privacy on his or her privately owned real property if he or she is not observable by persons located at ground level in a place where they have a legal right to be, regardless of whether he or she is observable from the air with the use of a drone.

The scope of this restriction is clarified by the new subsection 934.40(2)(e), which defines "surveillance" as:

1. With respect to an owner, tenant, occupant, invitee, or licensee of privately owned real property, the observation of such persons with sufficient visual clarity to be able to obtain information about their identity, habits, conduct, movements, or whereabouts; or

2. With respect to privately owned real property, the observation of such property’s physical improvements with sufficient visual clarity to be able to determine unique identifying features or its occupancy by one or more persons.

A person using a drone violates this law if he or she uses a drone to collect images that are clear enough to identify unique identifying features about a piece of property or people on that property. The incidental collection of such images by a drone that is used for different purposes would not appear to violate the restrictions on private drone use. Additionally, this law does not apply to property that is not fenced-in or vast, since features of this property would likely be observable by somebody on the ground, meaning that the property owner would not have a reasonable expectation of privacy.

The law does not criminalize the use of drones for this sort of surveillance, but it does contain a provision permitting civil lawsuits for those who are subject to drone surveillance that violates the provisions of section 934.50. The prevailing party in such a lawsuit would have the right to obtain attorney's fees, and a person subject to surveillance in violation of this law would have the right to seek punitive damages and/or injunctive relief.

The new provisions in S.B. 766 seem fairly reasonable to me. By requiring an intent to conduct a surveillance and a violation of a reasonable expectation of privacy, Florida's new law permits quite a bit of drone use -- even use that may incidentally capture images of private property. Additionally, the bill does not criminalize private drone use that violates the law's provisions, and instead only provides a civil remedy.

Florida Man Kills Neighbor, Brings Body to Lawyer's Office

From the incomparable Florida Man Twitter account, I learned of this strange story of a man who claims he killed his neighbor in self-defense, and who brought the body with him to his attorney's office. From the News Press article:

A Lee County man who drove a dead neighbor to his attorney's office will not be arrested, his attorney, Robert Harris, said late Wednesday night. 

John Marshall walked into Harris' Fort Myers law firm Wednesday claiming he had killed a man in self-defense in Bokeelia and brought the body with him in the bed of his pickup.

Robert Harris, the attorney for John Marshall (no, not the renowned Supreme Court Justice) had been counseling Marshall on the conflict between the neighbors. But he was certainly surprised at this turn of events:

Harris said he's never handled a case involving a client bringing a body with him. 

"They don't teach you about this in law school. That's for sure," he said. "I believe we've handled ourselves correctly, but I'm a little in shock myself. This is not something that happens every day."

While law schools may shy away from addressing this scenario, it certainly isn't off limits for law blogs. So what is a criminal attorney to do when a client brings a body (or other incriminating evidence) to the attorney's office?

Florida's Rules of Professional Responsibility state that while lawyers do indeed have a duty of confidentiality toward their clients, lawyers cannot obstruct, destroy, or conceal evidence sought by another party, including the government. Rule 4-3.4(a) states that a lawyer must not:

unlawfully obstruct another party's access to evidence or otherwise unlawfully alter, destroy, or conceal a document or other material that the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding; nor counsel or assist another person to do any such act;

The commentary accompanying the rule notes that parties entitled to the unobstructed evidence include the government. So if a client comes to an attorney with a dead body, the attorney certainly cannot hide or destroy the body, nor can the attorney counsel the client to do so.

Because news outlets are reporting on John Marshall bringing his neighbor's body to his lawyer, it appears that Harris complied with the applicable rules of professional responsibility. Students and professors of legal ethics should take this story to heart, and know that even the most outlandish of hypothetical scenarios occasionally make their way into the real world (or at least Florida).

A 23.6 Billion Dollar Punitive Damages Verdict Against RJ Reynolds Tobacco Co.

The BBC reports:

A US court has ordered the country's second largest cigarette company to pay $23.6 billion (£13.8bn) to the wife of a smoker who died of lung cancer. 

RJ Reynolds Tobacco Company was hit with the punitive fine in addition to $16.8m (£9.8m) in compensatory damages.

. . .

The punitive damages awarded to . . . [the plaintiff, Cynthia] Robinson were said to be the largest of any individual case stemming from a class action lawsuit filed in Florida.

The Chicago Tribune also has an article on the verdict. Both outlets report that RJ Reynolds plans to appeal, and the Tribune notes that "[s]uch industry appeals are often successful."

RJ Reynolds will almost certainly succeed if it appeals the punitive damages award.

When juries return a verdict on damages, they may award compensatory damages, which serve to compensate the victim for harm suffered and make the plaintiff whole. Juries may also award punitive damages if they find that the defendant acted in a particularly egregious manner. Punitive damages serve to deter defendants from acting this way.

I have blogged previously on cases here and here, where juries have awarded punitive damages thousands of times higher than the compensatory damages. As I mentioned in those posts, the Supreme Court has strongly suggested that punitive damage awards that are more than ten times the amount of the compensatory damage award are unconstitutional violations of due process.

What about this case?

Here, the jury concluded that the plaintiffs were owed $16.8 million in compensatory damages as a result of the wrongful death. The $23.6 billion punitive damages verdict is roughly 1,400 times the compensatory damages that were awarded.

Given the vast disparity between the compensatory and punitive damages, it is highly likely that RJ Reynolds will succeed if it appeals the punitive damages award. While this award is indeed noteworthy, it is not going to be around for long.

UPDATE

Reuters quotes a number of legal experts in this article who also think that the punitive damages award is not likely to stand.

Did Florida Really Just Expand Its "Stand Your Ground" Law?

Nicole Flatow of ThinkProgress thinks so, writing:

The bill to expand Florida’s notorious Stand Your Ground law became law Friday, after Gov. Rick Scott (R) signed a measure that immunizes individuals who fire or point a gun in self-defense or as a “warning” from criminal penalty. 

The National Rifle Association-backed bill extends Stand Your Ground-like protections to those who point a gun at an attacker or fire a gun as a self-defense threat or warning, expanding the scope of the discretion judges and juries retain to exempt shooters from criminal charges for gun violence. The bill gained traction after Republicans exploited the outrage over the 20-year prison sentence for Marissa Alexander, who fired a warning shot during an altercation with her abusive husband. The bill was then dubbed the “warning shot” bill, because a judge rejected Alexander’s move to invoke the law. But opponents were quick to point out that injustice in Alexander’s case hinged in large part on a draconian mandatory minimum sentence that required the 20-year prison term, insensitivity to domestic violence, and racial disparities that are already baked into the existing Stand Your Ground law.

The law is likely to expand immunity for violent conduct in as vague and sweeping a manner as Florida’s existing Stand Your Ground law, and could represent the newest mechanism for encouraging even more vigilantism.

I don't think that the law has the effect that Flatow claims it does. First, Florida law already held that pointing or firing guns as a warning was covered by existing self-defense law. And second, even if the law expanded the scope of what people can do when acting in self-defense, this expansion should probably be welcomed by those who want to see fewer injuries or deaths resulting from self-defense.

How Not to Respect a Defendant's Right to a Speedy Trial

From Legal Cheek:

The incident, which occurred yesterday, sees Judge John Murphy berate public defender Andrew Weinstock in a highly unprofessional manner after he became annoyed at his refusal to waive his client’s right to a speedy trial. The judge then invites the lawyer to “go out back” to an area of the court with no cameras. The courtroom camera captures audio of shouting, swearing and what seems to be a scuffle, with several loud thuds.

The story was initially reported by Florida Today, which provides a video of the incident. The video includes the judge's shouting at the public defender, the judge and the public defender exiting the room, what sounds like an ensuing scuffle, and the applause (at 1:40) by the spectators in the courtroom upon the judge's return.

From the rest of the video, it looks like the defendant ended up asking for the speedy trial anyway, despite his lawyer's disappearance from the courtroom. The judge scheduled the trial for June 9, one week later. This is unsurprising, as the judge sounds out of breath after his return to the courtroom and was probably too exhausted to engage in a second (alleged) brawl over the defendant's Sixth Amendment rights.

Legal Cheek reports that the Public Defender's office will be reporting the incident to the Florida Bar.

Lawmakers Catch On to the Zombie Apocalypse Implications of Florida Gun Bill

I recently blogged about a Florida bill that would, if passed, permit the unlicensed carrying of guns during state- and local-government declared states of emergency. In my previous post, I noted that the law seemed to be a pretty good idea. While, in the short run, the law may result in numerous deaths due to gunfire in the midst of riots and hurricanes, the bill will ultimately give Florida citizens the ability to fight the undead when the zombie apocalypse eventually occurs.

I am not the only person who has taken this stance. The ZombieLaw Blog notes that Florida state Senator Dwight Bullard has proposed an amendment to the bill which would change the title of the bill to read: "An act relating to the zombie apocalypse."

The ZombieLaw Blog also notes that Bullard tweeted this the morning before he filed the amendment:

Save the pomp let's pass some bills!! I respect all my fellow Senators, but Floridians are in need of action on real issues.
— Dwight Bullard (@DwightBullard) April 28, 2014

The Florida Senate has postponed action on the bill. The ZombieLaw Blog asks if there is a video of the amendment being raised, which apparently happened briefly today. If there is a video record of this event, it is probably part of this video, which documents today's Senate proceedings.

I have a final exam tomorrow, so I don't have the time to locate any discussion of the zombie amendment in that four-hour video. But perhaps I will leave the session recording on as background noise while I hammer out my outline this evening, and if I happen to come across anything interesting I will be sure to update this post.

Florida Court of Appeal Rules That Universities Cannot Prohibit Guns in Cars on Campus

From the court of appeal's en banc majority opinion in Florida Carry, Inc. v. University of North Florida:

At issue in this case is whether a state university may prohibit the carrying of a securely encased firearm within a motor vehicle that is parked in a university campus parking lot. We hold that the legislature has not delegated its authority under the Florida Constitution to regulate the manner of bearing arms to the state universities and reverse the orders on appeal.  

. . .  

UNF maintained that the regulation was authorized under section 790.115(2)(a)3., Florida Statutes (2011), which provides that firearms may not be possessed on school property except when securely encased in a vehicle, but that “school districts” may adopt policies to waive the secure encasement exception. The appellants countered that UNF was not a “school district;” therefore, it was not authorized to waive the exception and prohibit firearms in vehicles on its campus.  

After hearings on the motions, the trial court denied the appellants’ motion for temporary injunction and granted the appellees’ motion to dismiss. The trial court reasoned that applying the appellants’ definition of “school district” to section 790.115 would permit only public schools to regulate firearms on their property and frustrate the clearly expressed intent of the legislature to cover all schools as the term “school” was broadly defined in section 790.115(2)(a). 

The case turns on the distinction between the terms "school" and "school district."  While "school" is defined broadly in the statute, "school district" is a narrower term.  The court noted that "school district" is a term in the Florida state constitution, and that the constitution specifies that "school districts" are public schools governed by school boards -- and separate from the state university system.

Based on the last paper that I read on the subject, 19 states give universities the discretion to ban firearms on their campuses, and nearly all universities elect to do so.  Here, it looks like the Florida state legislature never purported to grant full discretion to universities -- the state statute banned firearms on school property, but had an exception for firearms kept in vehicles, and the question was whether Florida universities could enact policies holding that this exception would not apply to their campuses.  Under this ruling, the power to determine that the vehicle exception does not apply to school property is reserved only for school districts, and not state universities.

(H/T Howard Bashman - How Appealing)