Category Archives: Uncategorized

Does your right to defend yourself outweigh your boss’ right to tell you not to?

On September 17th, 2015 the Utah Supreme Court addressed a case wherein a group of Wal-Mart employees were fired because they did not follow the Wal-Mart Company’s non-resistance policy when they were faced with potential imminent violence from a customer.

Five different employees, in two separate incidents, violated company policy when they heroically handled death threats and potentially violent confrontations.

In the first incident, two employees disarmed a shoplifter, who after being detained, pulled a pocket knife and threatened to stab them if they didn’t let her go. In the second incident, the other group of employees detained a man hiding a laptop computer in his pants. While in the store office, the man made a threat then pulled a gun, ultimately shoving one of the employees against a wall and putting the gun at the employees back. The employees were able to pin the man against a wall and take his gun away.  For their heroic action in doing their job and protecting Wal-Mart’s interests, the employees were fired by Wal-Mart for violating a company policy which requires its workers to withdraw from any potentially violent confrontation and call the police.

The employees sued Wal-Mart in federal court for wrongful termination, arguing that Utah, where they were employed, provides a constitutional right of self-defense and that their right to defend themselves when faced with a situation of imminent bodily harm where they cannot withdraw from the potential violence, trumped the employers policy of withdrawal from confrontation. The case went to the Utah Supreme Court to make the determination of whether the right of self-defense is a substantial public policy that provides an exception to the employment doctrine which allowed Wal-Mart to fire the employees for any reason not prohibited by law.  Chief Justice Matthew Durrant of the  Utah Supreme Court acknowledged Wal-Mart’s interest in regulating its workforce, acknowledged that as an at-will employer, Wal-Mart can fire any employee for any reason not prohibited by law,  but found that the right of self-defense is an exception to the at-will employment doctrine and stated that where an employee reasonably believes that force is necessary to defend against an imminent threat of serious bodily harm with no opportunity to withdraw, the right to defend oneself outweighs the at-will employment doctrine. Wal-Mart could not fire the employees for this reason.

What a great country we live in. Utah has decided that, even at work where you are subject to your employers will, you still have the right to make the decision to defend your life.  If we believe in anything, shouldn’t we believe that the right to defend yourself – the right of self-preservation – trumps all other rights? I have always been an advocate of the right to self-defense.  I live my life by a code in which I attempt to provide civility to all I meet, but if I feel that my life or my family’s lives are in imminent danger, then shouldn’t I have the right to defend myself with every option available… including deadly force?  And isn’t it the individual, faced with the attack and its consequences, that has the right to make that decision and live with the consequence of their action?  The law is very similar in Florida which will be the subject of another blog.

As a personal injury lawyer in Melbourne Florida, but also a citizen of the United States, I applaud the findings of the Utah Supreme Court and the right of each individual to make the decision to run or to fight and to live with the consequences of their actions.

Clay Morgan, Brevard County Attorney, Morgan and Barbary


Exercise your right to protest, but be prepared for the consequences.

The other day, I was reading an article in the American Bar Journal about a man from Connecticut, William Barboza, who disagreed on the issuance of a speeding ticket he received while traveling through Liberty, New York, and decided to protest the ticket when making his payment to the city. He expressed his protest, when returning the payment form to the city, by crossing out the word “Liberty” and replacing it with “Tyranny” and then writing “F*** you Sh**** B******” across the top of the form when making his payment. Mr. Barboza was subsequently notified by a Justice of the Liberty court system that his payment had been rejected and he was ordered to appear in front of the Judge. Once in court, he was given a stern lecture about using obscene language and then arrested for aggravated harassment. He was handcuffed, detained and then released on $200 bail for his protest. Although the charges were later dismissed, Mr. Barboza, sued in federal court for alleged violations of his First Amendment right to free speech.

Following the trial, a Federal Court Judge found that “Though crude and offensive to some, (the statement) did not convey an imminent threat and was made in the context of ‘complaining about government’ activity which does not violate the law.”

What a great country we live in; one that allows its citizens the freedom to voice their displeasure at perceived injustices, even when they do it in a crude and offensive manner.

Now, I do not condone the use of obscene language when responding to tickets or other penalties assessed by our government. Let’s face it, payment forms are usually received and processed by clerks who are just trying to do their job. Cursing at a clerk in this situation is like yelling at a bank teller because your account balance is low. But exercising your right to tell the government you think they have done wrong or overstepped their authority…. That is our civic duty.

But we shouldn’t have to resort to obscene language to wage a protest. In fact, I think it does an injustice to our forefathers and our freedom. Whatever happened to protesting with eloquence? “Give me liberty or give me death.” -Patrick Henry; “All tyranny needs to gain a foothold is for people of good conscience to remain silent.” -Thomas Jefferson; “If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter.” -George Washington. Now those guys knew how to protest.

My thought on this story is simple. Raise your objection. Protest what you believe to be injustice. Our country was founded on our right to protest, many a patriot has shed blood to protect it, and we need to exercise it if we are to protect and keep those rights. Thomas Jefferson once said, “When injustice becomes law, resistance becomes duty.” I’m sure that had Mr. Barboza anticipated the time and money he would be spending on this he would have thought twice about issuing his obscene protest, but his protest, would be appreciated by Thomas Jefferson. In a country that allows such power to its people, I advise to exercise it, but do it with eloquence, not obscenity, and be prepared for the consequence.

For man to be free, people must fight for it from time to time. Or better said by a young Thomas Jefferson: “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure.”

Thanks for reading. See more articles from our attorneys at the law firm of Morgan and Barbary.

Clay Morgan, Esquire, Morgan and Barbary – serving Titusville, Melbourne, Palm Bay and other areas of Brevard County


Removing Criminal Case Records from the Public Database

A criminal record, involving even a small crime like Petty Theft, can affect the rest of a person’s life. Employment, admission to a school, or even renting an apartment can be denied. Fortunately, Florida law allows a sealing or expungement of a record. Certain serious crimes do not qualify, but most do. A SINGLE criminal case may be removed from the record, once in a lifetime.

A sealed record is hidden from view and an expunged record is physically removed from Florida public databases. There are certain conditions that have to be met in order to seal or expunge a record. A person may not have been convicted (adjudicated) of a crime in order to qualify. The final outcome of a case must be not guilty, dropped (notice of nolle prossequi or no information), or adjudication withheld. Traffic offenses, such as speeding, do not count as adjudications.

There is a problem, however, removing a record completely, because information that appears on the Internet is difficult to remove. There are businesses that provide Record Search services, unearthing information that might relate to an individual or business. Employers, schools, and even landlords make use of such services. In a perfect world, the process of sealing or expunging a criminal record would remove it from all databases. Unfortunately, that is not always the case. Despite a successful sealing or expungement, there may still be information on the Internet of an arrest, or even a booking photo. That record must also be removed in order to gain the benefit of sealing or expungement in Florida.

Once the process of sealing or expunging a crime is accomplished, Florida law allows an individual to act as if the incident never occurred. “Were you ever arrested?” “No.” “Ever charged with a crime?” “No.” It is of critical importance, then, that there be no record of crime that might appear on any record available to the employer or landlord who might be searching.

For the most part, the Criminal Record search companies are willing to remove a record from their database once they have proof that the record has been sealed or expunged by the State. They probably can’t be legally forced to do so, but they do as a matter of courtesy. That still doesn’t guarantee that somewhere out there in the eddies of the Internet, there isn’t some article, some photo, some document that can appear out of nowhere at the most inopportune time.

The good news is that there is a process to remove a record of a criminal case from the public database. And that the law allows a person to deny that any such criminal case ever existed. There is the problem of the private databases, however, and the effort that must be made to remove those records. In the end, the process of sealing or expunging a record in Florida, followed by a concerted effort to remove all evidence of the record from the Internet, is worth the effort.

To remove your criminal case, contact us at the law firm of Morgan and Barbary.

Darrell Sedgwick, Criminal Defence Attorney, Melbourne FL


The Effects of Divorce: Investment or Savings Vehicles

The Effects of Divorce on 529 Plans, College Saving Plans, Qualified Tuition Plans, Custodial Accounts and Trusts, or other investment or savings vehicles.

Equitable distribution is a basic component of Florida divorces. People are oftentimes consumed in dividing their marital assets like real estate property, boats, automobiles, bank accounts, retirement accounts, and the like. However, 529 Plans, College Saving Plans, other qualified tuition plans, or other investment or savings vehicles such as custodial accounts and trusts are lost in the mix of the dividing chaos. They become either forgotten, neglected, or assumed to simply be the property of the child and therefore not subject to equitable distribution.

Whatever the situation might be, the college savings plan is most often an asset of the marriage. It is important to know that because of the marital nature of this asset; college savings plans are subject to being divided as part of an equitable distribution scheme and should be taken very seriously.

Take for example a Florida 529 Savings Plan. The Florida 529 Savings Plan allows parents to start this fund at any time and for as long as they would like to fund the plan. The Florida 529 Savings Plan should simply be viewed as a savings account, albeit with special incentives, but is nonetheless an account. As such, this account is an asset that will be divided equally pursuant to Florida law, specifically Florida Statute 61.075.

Protecting your assets so that you have a full and fair settlement agreement, or that you don’t forget about certain property, is fundamental while going through a divorce. This is not only about protecting your assets, but also protecting your child’s future. Untying the mesh of financial disarray during a divorce is already stressful enough and most people are prone to overlook some assets.

Divorce is complex. Don’t go at it alone. Contact us today to talk about how family lawyers at Morgan & Barbary, P.A. can help you navigate the cloudy waters of equitable distribution in Florida.

John V Moore, Esquire


Your Resource for Child Relocation Representation

As your resource for legal representation in Melbourne, Florida we provide legal assistance concerning several areas of family law. We know that family matters can become quite stressful and complex. Don’t face them without an experienced attorney by your side.

At Morgan & Barbary we are experienced in providing representation regarding child relocation. Parents can face several different circumstances which can require out of county or out of state relocation. When one parent chooses relocation to another jurisdiction, often the other parent will oppose the move because of the effect the distance may have on visitation. Should your family encounter relocation issues, there is a Florida statute regarding the issue, which will help set guidelines for both parties.

Though Florida law sets requirements and standards for parental relocation with a child, this is a very serious matter and should not be endured without the assistance of an attorney. If you are considering relocating with your child, or you object to a child relocation, contact your legal problem solvers for expert advice and representation.