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Florida Carry Wins RKBA Court Victory - 1st DCA rules public universities have no authority to regulate firearms

FLORIDA CARRY PRESS RELEASE

December 12, 2013

FOR IMMEDIATE RELEASE

 

FLORIDA COLLEGES CANNOT REGULATE FIREARMS ON CAMPUS

 

Jacksonville, FL - On Tuesday, the First Florida District Court of Appeals ruled colleges and universities have no vested or delegated authority to regulate firearms on campus, and only the Legislature has that authority. This watershed decision is the first significant test of the preemption statute, §790.33 Florida Statutes, since it was amended in 2011 to allow for penalties to be imposed on state agencies in violation. 

 

Alexandria Lainez, plaintiff and Florida Carry member

 

 

Plaintiffs Alexandria Lainez and Florida Carry, Inc. jointly brought suit against the University of North Florida, where Lainez is a student, and John Delaney, in his capacity as President of the university, alleging a violation of preemption by having a policy prohibiting lawful storage of firearms in vehicles on campus. Ms.Lainez, a student at UNF and a single mother, commutes to and from campus to attend classes through some of the more dangerous areas of Jacksonville. A concealed carry license holder, she regularly carries her firearms to protect herself and her young son. Because of UNF's policies however, Lainez could not carry her firearm during her commute to and from campus because the university prohibited her from storing her firearm in her vehicle while in class, threatening her with both academic sanctions and criminal prosecution. One of our original members, Ms. Lainez contacted Florida Carry for assistance, and Mr. Eric J. Friday, Esq. agreed to provide representation.

 

At the trial court, Mr. Friday contended that the prohibition was unlawful because §790.115 grants an exception to the general prohibition against firearms for those which are properly stored in vehicles on school property. UNF's attorney countered that it was entitled to a waiver to that exception reserved for school districts claiming it should be considered as such. The trial court ruled in the university's favor. Plaintiffs appealed to the 1st DCA, claiming the trial court erred in its decision.

 

Oral arguments were heard by a three judge panel earlier this year. But in an unusual move, the panel presented to and solicited comment from both counsels, three questions asking of the status of the university as a constitutionally created entity, and suggesting that this might in fact provide them authority to regulate firearms on equal footing with the Legislature. Apparently this inquiry caught the eye of other judges at the court, who voted to convene as a group of fifteen and decide the case en banc rather than leaving the decision to just the three panel judges.

The 75-page ruling of the en banc court comprises 22 pages of decision, and is followed by 53 pages of both concurring and dissenting opinions. Writing for the court, Judge L. Clayton Roberts first addressed the trial court's ruling that the university was entitled under the school district waiver to prohibit firearms in vehicles. Reiterating the plain language of the statute and pointing out the inherent differences between a school district as defined in statute and the public college or university run by the Board of Governors, he stated:

 

"This court is almost in full agreement that UNF does not qualify as a "school district" under section 790.115; therefore UNF does not have the authority to waive itself out of the requirements of section 790.25, which gives Lainez the right to carry a securely encased firearm in her vehicle. Where we differ is in our consideration of the constitutional issue raised by the original panel."

 

   

The dissenting judges, two of whom were on the original panel, conceded that if the case were decided purely on the statutory interpretation of  FS 790.115, reversal of the trial court's decision was required. However, the dissenting judges engaged in what the majority referred to as a "tipsy coachman" analysis, which means they believed the trial court reached the correct result, but for the wrong reason. They suggested that the university, through the Board of Governors and UNF's Board of Trustees had authority under Article IX, Section 7 of the Florida Constitution. Judge Roberts and the majority disagreed, stating the Legislature's desire to occupy the entire field of regulation of firearms and ammunition was explicit and clear, and that had it wished to provide an exception for the university system, it would have as was done for the Fish and Wildlife Commission, another constitutionally created entity, to regulate firearms use in hunting activities.

Twelve of the fifteen judges joined in the decision to reverse the trial court ruling, with three dissenting. The concurring opinions were diverse in reasoning, with Judge Timothy D. Osterhaus criticizing the court for even considering the constitutional argument, to Judge Scott Makar's recounting the long history of the Legislature's support and defense of the right to keep and bear arms, and humorously suggesting that the dissent wanted to create a fourth branch of government, one with "edu-slative" powers that trump those of the Legislature!

In sum, the 12 - 3 decision affirms that universities and colleges have no authority to regulate firearms or ammunition, that power being the exclusive domain of the Legislature. Post-secondary education students are no longer under threat of arrest, and at public universities and colleges, no longer under threat of academic or administrative sanctions for having lawfully stored firearms in their vehicles while attending classes. Notwithstanding a stay pending reconsideration by the 1st DCA or an appeal to the Florida Supreme Court, the decision becomes final on December 26.

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New Gear for a New Year

Win a Florida Carry Custom AR-15

 

Our new custom AR-15 could be yours! Just register as a Florida Carry Member at: https://www.floridacarry.org/join
or as a Supporter at: https://www.floridacarry.org/emaillist

No purchase or donation is necessary. (However, we do appreciate your membership or donation to support Florida Carry’s gun rights work.) 

When you win, you’ll just have to pay whatever fees your local Federally Licensed Firearms Dealer (or FFL) charges to lawfully transfer the firearm to you. ($25 to $30 at most Florida FFLs.)

Tech specs below:

  • Forged Upper Receiver with M4 Feed Ramps and Rail T-Marks
  • 16" 5.56mm NATO Chambered M4 Profile Barrel with 1:7" twist
  • A2 “Birdcage” Compensating Flash Hider
  • Midwest Industries Gen2 SS-Series Free Float Handguard
  • M16 Type Bolt Carrier Group
  • M16 Type Charging Handle
  • Florida Carry Engraved Dust Cover
  • Magpul AFG (Angled Fore Grip)
  • Magpul MBUS Front and Rear Sights
  • Larue Tactical Index Clips
  • A2 Style Pistol Grip
  • Forged AR15 Lower Receiver
  • Single Stage Mil Spec Trigger
  • Magpul Aluminum Enhanced Trigger Guard
  • M4 Style Mil Spec Adjustable Stock
  • Tapco Ambidextrous End Plate Sling Adaptor
  • 1x 30 Round Polymer Mag
  • 1x 20 Round PMAG
  • 38" Rifle Soft Case

We do not share or market your information. Protecting the First Amendment Associational Privacy Rights of our members and supporters is a responsibility Florida Carry takes very seriously.

Any applicable taxes or fees are the responsibility of the winner, residency restrictions apply where prohibited by law, winner must be 18 years of age or older and not prohibited by law from owning or possessing an AR15 rifle as configured. Winner to be selected by random drawing on or about April 1st 2014. Eligible registrations must include first and last name, email address, and mailing address.

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State Attorney Brings Bloomberg Style Stop and Frisk Policy to Florida With Help from the Florida Supreme Court

 

 

The recent decision in Mackey v. State is being hailed by police and state attorneys, especially those who are anti-gun. 

 

 

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): 

 

“The Court found that the permit is an affirmative defense to be raised by the defendant after his arrest; it is not element of the crime to be disproved by the officer prior to effecting the CCF arrest."  See pages 4 and 5 HERE

 

 

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.

 

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New Gear for a New Year

Win a H&K VP9, a Florida Carry Custom EDC Kit, and Training.

 

This new VP9, EDC kit, and Training could be yours! Just register as a Florida Carry Member at: https://www.floridacarry.org/join
or just sign up for our email alerts on the same page.

No purchase or donation is necessary. (However, we do appreciate your membership or donation to support Florida Carry’s gun rights work.) 

All current members and supporters as of April 1st, 2015 will be entered to win. 

When you win, you’ll just have to pay whatever fees your local Federally Licensed Firearms Dealer (or FFL) charges to lawfully transfer the firearm to you. ($25 to $30 at most Florida FFLs.)

Specs below:

  • H&K VP9 Striker fired pistol w/ night sights and 3 standard capacity mags (15 round)
  • FourSevens Quark Pro QPLC Flashlight
  • Panther Concealment Holster
  • SOG Trident Elite assisted opening knife
  • Certificate for a One Day Introduction to Defensive Pistol Course from South Florida Gun School.

 

We do not share or market your information. Protecting the First Amendment Associational Privacy Rights of our members and supporters is a responsibility Florida Carry takes very seriously.

Any applicable taxes or fees are the responsibility of the winner, residency restrictions apply where prohibited by law, winner must be 18 years of age or older and not prohibited by law from owning or possessing a handgun. Winner to be selected by random drawing on or about April 1st 2015. Eligible registrations must include first and last name, email address, and mailing address.

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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.

 

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