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State Attorney Brings Bloomberg Style Stop and Frisk Policy to Florida With Help from the Florida Supreme Court
State Attorney Brings Bloomberg Style Stop and Frisk Policy to Florida With Help from the Florida Supreme Court
Don’t believe it? Take this gem from the Office of the State Attorney for the 15th Judicial Circuit (Dave Aronberg, NRA F-rated candidate 2008):
That’s right, having a concealed weapon firearm license (CWFL) does not keep you from being arrested, you can explain that to the judge at first appearance, after you spend a night in jail and get a felony arrest record. Mr Aronberg’s office has taken an inch from the Supreme Court and become a ruler. Do not think that other anti-gun state attorneys, sheriffs and police chiefs won’t do the same. This is the same type of discriminatory, unjustified harassment that was recently struck down in a challenge to Mayor Bloomberg’s illegal stop-and-frisk law, in New York City.
Given the history of Florida’s gun laws which were written to “disarm the negro laborers and to thereby reduce the unlawful homicides that were prevalent in turpentine and saw-mill camps and to give the white citizens in sparsely settled areas a better feeling of security,” it is no stretch to say this new policy will likely be applied primarily in low-income neighborhoods and against minorities. This especially true considering the Mackey court’s opinion, which allows officers to reduce the level of constitutional rights in high crime neighborhoods by using the type of neighborhood as an additional factor to justify stops of lawful gun owners.
Until the passage of the 1987 concealed carry law, which in every way conceivable liberalized Florida’s carry laws, the fact that a person did not have a firearm license was a necessary element before arrest, that had to be proven by the State in order to convict a firearm owner. The Court relied solely on the fact that the licensing was in a subsequent paragraph rather than a prepositional phrase as it was previously, to determine that while everything else about the 1987 concealed weapons was intended to give more rights to gun owners, this one factor was changed to allow harassment of gun owners.
Florida Carry believes that it was only due to its Amicus brief , which at least one justice quoted at oral argument, that Regalado is still good law. While some pro-gun individuals and groups, including some attorneys, believe that the Supreme Court’s ruling was not that bad, Florida Carry sounded the alarm in its Amicus brief on Mackey as well as when the decision came out. Florida Carry warned in its Amicus brief that a bad decision in Mackey would open the door for harassment of law abiding gun owners including the ability to detain a gun owner anytime an officer suspected they were carrying a firearm. Florida Carry also warned that finding that having CWFL was only an affirmative defense would lead to officers having the right to arrest licensee’s and give them a felony arrest record and a night in jail for exercising their rights, and taking away any recourse to challenge the arrest.
It did not take long for the full impact of this terrible decision to become obvious. In addition to the quote above, Mr. Aronberg’s office ignored other important points from the Mackey decision, that were meant to give some continued protection to law abiding gun owners. For example, even thought the Supreme Court stated that Regalado was still good law and that something besides possession of a firearm was necessary to conduct a Terry stop, Aronberg advises that the Mackey decision is inconsistent with Regalado’s and that officers do not need any evidence that the firearm is illegally possessed before conducting a stop and an arrest.
Despite the fact that the Legislature prescribed that the sole penalty for not having your CWFL with you when carrying was only a civil infraction, like a traffic ticket, with a $25 fine. The Mackey decision means almost certain arrest if you forget your CWFL and the real potential for arrest even if you have it with you. It really is up to the officer’s discretion. And don’t rely on the Judge to save you. This is the same circuit where Judge Krista Marx of the Stand- Your-Ground Task Force presides. At one of the hearings she criticized Florida Carry’s lead counsel for daring to suggest that unlawfully prosecuted law abiding citizens should be compensated for the costs of defending themselves, and should actually have the immunity granted by the Legislature.
It is time to demand that the Legislature correct the Court and state once an for all that a CWFL is much more than an affirmative defense.
FLORIDA CARRY PRESS RELEASE
August 16, 2013
FOR IMMEDIATE RELEASE
JUDGE ORDERS DAYTONA BEACH TO RETURN VETERAN’S GUNS
Daytona Beach, FL - A Florida court on Tuesday ordered the Daytona Beach Police Department to return all property it seized from A.B., Florida Carry, Inc.'s co-plaintiff in the lawsuit against the City of Daytona Beach, its mayor and chief of police. A.B., an honorably discharged combat vet, called a veteran’s assistance hotline for someone to talk to. While the VA hotline worker did the right thing by having the police come out and check the situation, the police went too far. After he was taken in to custody and separated from his firearms, the police officers searched his home without a warrant or any exigent circumstance and illegally seized $20,000 worth of his firearms, bows, arrows, ammo, and first aid and protective equipment. Included was the Japanese Arisaka rifle that his grandfather brought back from WWII and the medical shears that this patriot used to cut two fellow Infantrymen from a HMMWV during an IED attack.
Unfortunately several of the firearms, including the irreplaceable Japanese heirloom war trophy, were damaged due to careless storage. The wood stocks were gouged and scratched, metal surfaces were marred, and the guns developed significant rusting. Some even had parts missing. In fact, the Arisaka brought back by the combat vet's grandfather was ruined. Unlike firearms taken as evidence which are carefully and individually packaged to preserve them for use in court, these firearms were simply tossed on a shelf and ignored, left to be ravaged by humidity. The department also seized a plate carrier with a pouch originally containing an iPod Touch which mysteriously went missing.
During the hearing, the city failed to offer any evidence of unsound mind, which was their alleged basis for seizing the property, ironically for "safekeeping." Furthermore the city ignored that Sec. 790.17, Florida Statutes, does not grant them any authority to seize or keep property in these circumstances, as affirmed in an opinion published by the Florida Attorney General and courts statewide. The city also ignored the language of the Baker Act itself which prohibits any loss of constitutional rights by individuals who are examined under the Baker Act. The city however claimed that veterans who are suspected of suffering from post-traumatic stress disorder should not have their firearms returned to them, deeming them to be of unsound mind, assuming the role of competent medical authority and snubbing the opinion of professionals who actually perform Baker Act evaluations.
Incredibly, one firearm in particular was returned in pristine condition, apparently being properly stored and cared for - an AR-15 semi-automatic rifle. Could it be that someone in the Daytona Beach police department was hoping to have this firearm forfeited by A.B. so it could be used as their new patrol rifle? One has to wonder.
The case now moves onto the next phase, where the court will consider the allegation that the city willfully and knowingly violated the state firearms law preemption statute which expressly forbids any government entity from promulgating and enforcing a rule that regulates firearms, as well as the compensation due the plaintiffs.
"As long as law enforcement agencies continue to violate the law, Florida Carry will continue to pursue them for their violations" said Eric Friday, Lead Counsel for Florida Carry and A.B.
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
No firearms signs short-lived at health department
The (anti-gun) signs were up for one day until Florida Carry Inc., a gun rights group, contacted the Health Department and said it had received bad legal advice, Chapman said.
The department discussed the issue with its lawyer again and determined that people with a concealed weapons permit can bring a gun into the building.
“The law is the law,” Chapman said. “We will abide by the law.”
The Florida Department of Health attorney came to the wrong conclusion of law about the Health Department’s authority to regulate firearms. We spoke to another DOH attorney, with whom we had worked previously, and notification that such signs are illegal has now gone out to DOH Regional Directors statewide. Florida Carry abhors filing lawsuits; they are costly and time consuming. This is just an example of the work we do every day. It is rare for these actions to actually be reported to the media or make the news.
Daytona police want judge to clarify authority in holding veteran's guns
Florida Carry's suit claims police violated state law when they entered A.B.'s Pelican Bay townhouse and confiscated his firearms and then refused to give them back.
Officers took the weapons on Dec. 23 and police officials told A.B. that he must obtain a court order for their return.
A.B. has not been declared mentally ill by a judge, Florida Carry said, and therefore he is not -- according to state law -- prohibited from owning guns.
While Chitwood said the agency is aware of state statutes and the 2009 McCollum opinion, the issue is one of community safety versus the rights and interests of one person.
One talk with a qualified mental health professional was all it took to determine that the combat 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 property back despite numerous previous court decisions and instructions from the Florida Attorney General that all instruct that his property, including firearms, should be immediately returned. We had no choice but to file a lawsuit in this case.
Florida Carry sues Citrus County Sheriff and deputies over arrest of law-abiding gun owner
Florida Carry consulting attorney J. Patrick Buckley III who is also representing Mr. Smith in the case summed up the case:
"Improper law enforcement training coupled with an emotional overreaction is detrimental to the civil rights of Floridians. When a Constitutional officer then delays the resulting internal investigation to permit the untrained officer to walk away without so much as a slap on the wrist, it illustrates a systematic absence of accountability in those we trust to protect us."
Joining Mr. Smith as plaintiff, Florida Carry is representing its membership and millions of Florida gun owners in the lawsuit.
Florida Carry files amicus brief supporting MS Open Carry law
Because sometimes (usually) just shouting “Shall not be infringed!” is not enough. Florida Carry has filed a “friend of the court” brief highlighting the constitutional right to bear arms outside the home and the differences between that fundamental right and the court decisions ruling that there is only a privilege of a license to conceal.
Briefs filed in MS Supreme Court supporting Mississippi’s “HB2″ Open Carry law (in docketed order):
Florida Carry, Inc. - Florida Carry Amicus Brief
National Rifle Association - NRA Amicus Brief
Citizen Supporters of HB2 - Citizen Supporters of HB2 Amicus Brief
80 Named MS Legislators - Named MS Legislators Amicus Brief
MS Governor Phil Bryant - Gov. Bryant Amicus Brief
Do gun buyback programs work?
Eric J. Friday, Florida Carry’s Lead Counsel, explains that gun “buyback” schemes are a huge waste of tax dollars and private funds.
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!