Today Florida Carry, Inc., filed an action to stop Daytona Beach’s illegal practice of refusing to return firearms to people, including veterans, who were Baker Acted but found to be no danger to themselves or others. For too long, many jurisdictions throughout Florida have refused to follow the law. In 2009 the Florida Attorney General made clear in an opinion that the continued detention of firearms after a person was released without being found to be a danger to themselves or others was prohibited by Florida law. Despite the clear instruction from the Attorney General and the legal prohibition on creating their own firearms rules since 1987, these individuals and agencies who have sworn to uphold the law, have instead violated the law and the Constitutional rights of law-abiding Florida gun owners. It is time to hold these jurisdictions responsible and require that these people in authority follow the laws they swore an oath to uphold and enforce.
As we previously reported, an honorably discharged combat vet called a veteran’s assistance hotline for someone to talk to. Instead of finding the sympathetic and understanding ear of a fellow vet, the VA hotline worker got the police to come out and take this man who has stood in defense of our country from his home and submit him for mental evaluation. The police officers also seized his firearms, bows, arrows, ammo and protective equipment. One talk with a qualified mental health professional was all it took for the doctor to determine that the vet was never a threat to himself or anyone else.
Now the police department refuses to give this man who has stood watch for our defense his guns back despite numerous previous court decisions and instructions from the Florida Attorney General that all instruct that his property should be immediately returned.
This problem has been found statewide and Florida Carry got involved in this case to protect the rights of all Floridians. The denial of personal property rights without just cause and the denial of the right to bear arms without due process of law must end now.
The case filing can be read here: Complaint_A.B_and_FL_Carry_v_Daytona
The Generally Pro-Carry Supermajority was lost in the FL House and reduced in the FL Senate as we face challenges to Florida’s Self-Defense and Right to Carry laws in the next legislative session.
Two articles from Sunshine State News provide some insight on the State races.
Generally pro-gun but anti-open carry State Sen. Ellyn Bogdanoff (R-Fort Lauderdale) was defeated by rabidly anti-gun/anti-self-defense State Sen. Maria Sachs (D-Boca Raton).
State Rep. Chris Dorworth (R-Lake Mary), who sponsored Campus Carry and Open Carry legislation in 2011 and is in line to become House Speaker, is currently 37 votes behind his anti-gun challenger Mike Clelland (D) who wants to make it illegal to purchase ammunition in quantity or via the internet and has decried the private ownership of “Assault Weapons” and “Large Clips”.
Amidst the George Zimmerman Self-Defense trial and the media storm that surrounds it; the incoming Senate Democratic Leader, State Sen. Chris Smith (D-Fort Lauderdale), has been an outspoken critic of Florida’s “Stand Your Ground” and Self-Defense Immunity laws and has even called for repeal of long standing “Castle Doctrine” protections.
In addition to our ongoing right to carry and firearms law preemption lawsuits, Florida Carry is currently working on these legislative priorities for the 2013 session.
- "Stand our Ground" to support Self-Defense Laws that do not require people to turn their backs and try to run from an attack.
- Defensive Display law to allow armed people to defensively display a firearm or defensive weapon while under criminal attack but before needing to actually use lethal force.
- Knife & Defensive Weapon Law Preemption
- People who defend themselves should be "innocent until proven guilty". Shift the burden of proof to the State in Self-Defense Immunity Cases.
- Remove arbitrary round count enhancements. Repeal the 20 round mag = automatic 20 year mandatory minimum law.
- Stop applying 10-20-Life mandatory minimum laws to people who are only trying to defend themselves against an imminent or actual violent criminal attack.
- Reduce the list of “Defense Free Zones” where carry is prohibited.
- Open Carry
- Campus Carry
- Constitutional Carry
Now, more than EVER before, it is critical that we have your support, your voice, your membership and yes… We critically need your money if we are to continue to be effective in this fight. Please Join or Donate today!
The Fourth Amendment provides that:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
We all know that the police can't generally just stop and search you when you're just out in public and minding your own business. You have a Fourth Amendment right that protects you from such invasions of your privacy. Unless you are attempting to go in to a secured "sensitive place", there must be a reasonable suspicion that you are committing a crime for a police officer to search you. That is, at least so long as you don't exercise your Second Amendment right also.
In 1984 the Florida Supreme Court ruled that there can be no assumption that everyone carrying a gun is doing so unlawfully because the legislature intended to exempt carry licensees from the crime carrying a gun. This made the absence of a license to carry a necessary element of the crime of Concealed Carry.
The Florida high court came to this conclusion by analyzing the statute and applying a general rule regarding exceptions and prepositional phrases. Most importantly, it said:
A court's main guide in construing a statute is the legislature's intent. Accordingly, general rules of statutory construction, such as the one in Baeumel, are designed to help courts ascertain the intent of the legislature. As stated above, however, Baeumel is a general rule, and in some cases the placement of a statutory exception is not determinative of the legislature's purpose regarding a statutory exception.
State v. Robarge (450 So. 2d 855) (internal citations omitted).
Then, in 1987 Florida changed its law to create a statewide licensing system for concealed carry. This did away with the former law that based the licensing of concealed and unconcealed carry with County Commissions. This was the famous "Shall-Issue" law that made Florida the prototype for concealed carry laws nationwide. Today nearly 1-million people have current Concealed Carry Licenses under this law.
The problem is that when the law was changed, the legislature didn't use the general rule of statutory language construction that was used in the previous statute. This gave prosecutors another bite at the apple. The courts started to ignore the legislature's intent and instead, just looked to the technical structure of the updated concealed carry statutes.
Now the courts are saying that anytime you carry a firearm you are committing a crime. If you have a concealed carry license, that just gives you an "affirmative defense" to the charges.
Under Florida law, the crime of carrying a concealed firearm is complete upon proof that the defendant knowingly carried a firearm that was concealed from the ordinary sight of another person.
The statutory provision which addresses the licensed carrying of a concealed firearm is contained in a subsection separate and distinct from the provision which prohibits the carrying of a concealed firearm. Thus, the absence of a license is not an element of the crime, but is considered an "exception" to the crime, and proof that a defendant possessed a license to carry a concealed firearm must be raised as an affirmative defense. Mackey v. State, 83 So. 3d 942, 946-947 (Fla. Dist. Ct. App. 3d Dist. 2012)
Obviously this result is not what the legislature intended when it was trying to make carrying easier in 1987. Regardless, the courts have be skipping the intent analysis done by the Supreme Court in 1984 and are instead misquoting the case by using just a small part of the Robarge decision and citing it completely out of context.
See also State v. Robarge, 450 So. 2d 855 (Fla. 1984) v. Robarge, 450 So. 2d 855 (Fla. 1984) (holding that under rules of statutory construction, if an exception is contained in a clause subsequent to the enactment clause of a statute, the exception is an affirmative defense rather than an element of the offense);
Mackey v. State, 83 So. 3d 942, 946-947 (Fla. Dist. Ct. App. 3d Dist. 2012)
So... In order for the police to stop and frisk or arrest you, they must first observe facts supporting a reasonable suspicion that a suspect is engaged in criminal activity or have information suggesting the possession of a firearm is unlawful.
Now, under the Mackey decision, any time you exercise your Second Amendment right you are engaged in presumably criminal activity.
Therefore, you can be stopped, searched, and even arrested for carrying a firearm and then be made to present the "affirmative defense" to a judge that you have a valid concealed carry license.
THIS CANNOT STAND!
This Mackey case has been appealed to the Florida Supreme Court (SC12-573). Florida Carry is filing an Amicus Brief on behalf of the law-abiding gun owners of Florida to reverse this dangerous precedent.
Filing fees, printing costs, and other necessary fees are expensive.
We NEED your support so that we can continue to defend your right to carry.
FOR IMMEDIATE RELEASE, Aug 14th 2012
Ft. Pierce, FL - Today, St. Lucie County Judge Cliff Barnes denied all constitutional arguments to dismiss the case against Dale Norman, without written order.
State v. Norman is the case of a law abiding concealed carry licensee who was arrested and prosecuted in Fort Pierce, FL for violating Florida nearly complete ban on Open Carry after his otherwise lawfully carried handgun unknowingly became unconcealed while walking.
The denials were based, in part, on the courts findings that the statute is facially overbroad and is facially vague, but was not necessarily improper “as applied” in this case. This turns the standard of statutory review on its head by applying it in reverse.
The judge also did not fully consider the Second Amendment or FL Art.1 Sec. 8 question; denying it because the question of the right to bear arms "is for someone above the level of this court."
The prosecution, having already been notified of our intent to appeal, took the unusual tactic of stipulating to the court that withholding adjudication and just imposing a fine would suit the State’s interest after the Judge explained his grounds for dismissal of the constitutional challenges.
The Second Amendment question is fairly straightforward; Florida courts have clearly acknowledged that the carrying of a concealed firearm is a privilege subject to even being banned completely, not a right protected by the constitution. Florida appellate courts have found that the “Retroactive application of (new Florida Statutes), is not unconstitutional because a license to carry a concealed weapon or firearm is a privilege and not a vested right.” Crane v. Department of State, 547 So. 2d 266 (Fla. 1989).
The “privilege of a license to carry a concealed weapon or firearm” recognized In Crane cannot replace, or substitute for, the fundamental right guaranteed by the U.S. and Florida Constitutions. Florida courts have long held that there is a right to bear arms outside of the home.
The written order for Dale Norman's case is pending. We are asking the judge to certify the constitutional questions directly to the Florida 4th District Court of Appeals as matters of great public importance.
Florida Carry is providing for the continued defense of Dale Norman and seeks to clarify what the right to bear arms is in Florida. Please help us win this fight for your RIGHT to Bear Arms by Joining or Donating.
Florida Carry declares victory over City of Leesburg in preemption case
Motivated by the filing of a lawsuit by Florida Carry alleging violation of Florida's 25 year-old Firearms law preemption statute, the Leesburg City Commission has repealed their anti-gun ordinance. Ironically, the lawsuit could have been completely avoided had the city simply repealed the unlawful ordinance when they were originally notified that the ordinance was in violation of preemption by Florida Carry.
On behalf of Florida Carry's membership, Executive Director Richard Nascak sent a letter on December 15, 2011 demanding compliance, citing Florida Statute 790.33 passed in 1987 and Public Law 2011-109 which enhanced enforceability of the firearms preemption statute and became effective on October 1, 2011. Referencing Leesburg's Code of Ordinances §15-3. This ordinance, originally enacted in 1953, prohibited the discharge of firearms within the city limits. Mr. Nascak received a terse response from the Leesburg City Manager, Jay Evans, stating:
'The City of Leesburg is well aware of FS 790.33. You will note the statute says specifically that local governments are prohibited from "enacting, enforcing, or promulgating ordinances which regulate firearms and ammunition...". None of these things has occurred since October 1, 2011. There is no requirement that we repeal said laws, as you seem to indicate is necessary. Any action taken in the future regarding the existence of these laws in our Code of Ordinances will be done at the discretion, pleasure, and timing of the Leesburg City Commission.'
Florida Statute §790.33, enacted by the state legislature in 1987, declared all existing local ordinances, rules, and regulations which regulated firearms null and void at that time. Naively believing local governments would immediately comply with state law, the legislature included no penalties for noncompliance. Despite being null and void, over 300 local governments still had such ordinances on the books in 2010, and remained defiant when state legislators reminded them that they were in violation of state statute, essentially telling the legislature, "there are no penalties, so we won't comply."
Infuriated, state legislature introduced HB 45 in the 2011 legislative session, which amended §790.33 Florida Statutes to include stiff penalties for local governments who insist on attempting to regulate firearms in violation of preemption, and even includes personal sanctions for officials who participate up to and including removal from office. Also included in the amendment is the statutory granting of legal standing for gun rights organizations like Florida Carry to file suit on behalf of their membership in cases challenging offending ordinances.
Leesburg's apparent unwillingness to repeal an ordinance they knew had been null and void since 1987 was puzzling. We could only assume that the city wished to willfully misrepresent the order of law. Since the ordinance was published as part of the City Code of Ordinances, an unknowing citizen would assume the city had the legal right to enforce said ordinance, despite the statute forbidding enforcement or promulgation. Deliberately playing on the ignorance of the public, Florida Carry believed the ordinance would have a chilling effect on the rights of citizens, who were complying with state statute. Therefore suit was filed against both the City of Leesburg and the City Manager Jay Evans in March on behalf of Florida Carry and its membership by counsel Patrick Buckley of The Law Office of J. Patrick Buckley III in Fort Myers, and co-counsel Eric J. Friday of Fletcher and Phillips in Jacksonville.
Subsequent to our lawsuit, the City Commission of Leesburg repealed the offending ordinance on April 29, 2012. Had the city repealed their ordinance in response to our earlier notification, rather than taking a "we'll get around to it when and if we feel like it" approach, the suit would never have been filed.
Since the statute's effective date of October 1, 2011, Florida Carry has been in the process of identifying and contacting local governments in violation. The majority of local governments contacted have either repealed offending ordinances or amended such ordinances to bring them into compliance with state law. Florida Carry has taken, and will take, no legal action against those local governments who indicate they intend to comply within a reasonable time-frame. However, those local governments who enact, or stubbornly continue to enforce or promulgate unlawful firearms ordinances are subject to suit by Florida Carry as we seek to protect the rights of all lawfully armed Floridians.