Florida Carry

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Florida Carry sues Eastern Florida State College for illegal ban on guns and other defensive weapons in cars

 

On Thursday January 30th there was an apparent self-defense incident in the parking lot at the Palm Bay campus of Eastern Florida State College. While we won't be commenting on the incident until all relevant facts are known, something very troubling has come to light as a result.

In December the 1st District Court of Appeal sided with Florida Carry in our lawsuit against the University of North Florida. This case ruled that college policies prohibiting the lawful possession of firearms and other arms in private vehicles on campus are preempted by both statute and by the Florida Constitution. In short, colleges with such policies are breaking the law and violating the rights of students, employees, and campus visitors.

Also on Thursday, Eastern Florida State issued a press release that states, in relevant part:

The incident comes following a Florida appeals court ruling last week that struck down a University of North Florida policy that banned keeping firearms in cars on campus.

Some Florida universities have since changed their policies to allow guns in cars on campus, but Eastern Florida State College has kept its ban in place pending a final court rehearing of the UNF case.

Eastern Florida State College policy prohibits weapons anywhere on its four campuses, with the following stated in the college's governing policy manual and in the Student Code of Conduct:

"Students may not possess weapons while on college property (law enforcement officers excluded.) Weapons are defined as firearms, knives, explosives, flammable materials or any other items that may cause bodily injury or damage to property."

To be clear, there is no rehearing or appeal on the merits of the decision pending in any court. There is a pending motion for reconsideration of the court's award of attorney's fees but that has no bearing whatsoever on the finality of the 1st DCA order. The court's order is final and binding statewide and Eastern Florida State is clearly breaking the law.

On Monday February 3rd, 2014 Florida Carry, Inc. filed a lawsuit against Eastern Florida State College (EFSC), seeking a permanent injunction to protect the rights it members who are students, faculty, and the campus visitors from the college's illegal and unconstitutional regulations prohibiting defensive firearms and weapons on all college property. Since 1987 the Florida Legislature has preempted firearms law and issued state-wide licenses to carry for self-defense. In December Florida Carry won a similar case against the University of North Florida (UNF). In Florida Carry v. UNF the First District Court of Appeal ruled that "The legislature’s primacy in firearms regulation derives directly from the Florida Constitution... Indeed, the legislature has reserved for itself the whole field of firearms regulation in section 790.33(1)..." No public college or university has any authority to prevent students and the public from having a functional firearm in places that are constitutionally protected or permitted under state law. Eastern Florida State has willfully and intentionally refused to comply with the court's ruling. In short, colleges with such policies are breaking the law and violating the rights of students, employees, and campus visitors. Florida Carry will not sit idly by and watch the civil rights of Floridians be violated.


Docket Overview: Lower Court Case Number: 05-2014-CA-014025
Brevard County Clerk of the Circuit Court


Lower Court Filings: 

2/3/2014 Plaintiffs' Complaint
4/30/2014 All EFSC regulations changed - Settlement Reached.

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Florida Carry files lawsuit against St. Petersburg College for illegal gun and defensive weapons regulations

 

On Friday, February 28th, 2014 Florida Carry received a member complaint that St. Petersburg College was still refusing to allow students and employees to lawfully store firearms in their personal vehicles while parked on campus despite a widely reported December 2013 ruling of the Florida 1st District Court of Appeal.  Our Campus Policy Director contacted the college and was also told that firearms could not be stored in student's cars on campus. Such illegal policies adversely affect the rights of many of our members, and others, who attend the St. Petersburg College and live in the local community.

 

In December the 1st District Court of Appeal sided with Florida Carry in our lawsuit against the University of North Florida. The court ruled that college policies prohibiting the otherwise lawful possession of firearms, and other arms, on campus are preempted by both statute and by the Florida Constitution. In Florida Carry v. UNF the First District Court of Appeal ruled that "The legislature’s primacy in firearms regulation derives directly from the Florida Constitution... Indeed, the legislature has reserved for itself the whole field of firearms regulation in section 790.33(1)..." No public college or university has any authority to prevent students and the public from having a functional firearm in places that are constitutionally protected or permitted under state law. In short, colleges with such policies are breaking the law and violating the rights of students, employees, and campus visitors.

 

On December 23, 2013 Florida Carry issued a warning to public colleges and universities statewide.
"Any Florida public college or university that fails to notify all students and the public that prohibitive policies regarding the storage of firearms, or other defensive arms, in the personal vehicles of its students and visitors are void and unenforceable by the first day of Spring semester classes will be subject to being sued by Florida Carry for violations of 790.33 Florida Statutes and/or Article I, Section 8 of the Florida Constitution."

 

On Monday March 3rd, 2014 Florida Carry, Inc. filed a lawsuit against St. Petersburg College, it's board of trustees, president, and the campus security official enforcing the college's illegal firearm and non-lethal electronic defensive weapons policies.  This is the fourth Florida College or University that Florida Carry has been forced to file a case against for refusing to follow state law.  Florida Carry will not sit idly by and watch the civil rights of Floridians be violated.


Docket Overview: Lower Court Case Number: 14-001735-CI
Pinellas County Clerk of the Circuit Court


Lower Court Filings: 

3/3/2014 Plaintiffs' Complaint

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On May 22nd, 2013 Florida Carry, Inc. filed an action in court 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 official opinion that the continued detention of firearms or other property 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 that has been in place since 1987; these individuals and agencies who have sworn an oath to uphold the law, have instead continually 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 Florida Carry Executive Director Sean Caranna previously reported, an honorably discharged combat vet. called a veteran’s assistance hotline for someone to talk to after drinking too much. 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 risked his life in the defense of our country during multiple combat tours, from his home and submit him for mental evaluation. 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, first aid, and protective equipment. Including 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.

 

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.

 

The Legislature and Governor have made it clear that due process protections must be honored if a person's right to keep arms are to be curtailed.  The City of Daytona Beach acted without authority, and despite the constitutional guarantee of the due process of law, to seize personal property and continues to deprive A.B. of his constitutionally protected arms despite the legislature's clear preemption of firearms policy/law and hundreds of years of court precedent governing the taking of personal property by a government entity.

 

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 keep arms without due process of law must end now.  


Docket Overview:

Case Number 2013-31317-CICI

5/22/2013 - Complaint: Complaint_A.B_and_FL_Carry_v_Daytona
6/12/2013 - Answer Brief: Daytona's Answer and Counter-Claim
6/28/2013 - Motion to Strike: FL Carry's Motion to Strike affirmative Defenses
6/28/2013 - Answer to Counter-Claim: Plaintiffs answer to Counterclaim Daytona
8/13/2013 - Order of Replevin Granted - Firearms Returned (Damaged)
8/13/2013 - City's Counter-Claim: Denied as Moot


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When Hueris Mora came to us, we did what we always do when contacted by someone who is facing gun carry charges. We set about researching the charges and circumstances of the incident. Florida Carry only gets involved in these cases when good people face unjust charges because they choose to lawfully carry defensive arms.

 

In his case, it was immediately apparent that continuing prosecution by the office of Katherine Fernandez Rundle, Miami-Dade State Attorney, was unjust at best. Our consulting attorneys statewide were in unanimous concurrence that prosecution of this case, despite the clear language of 790.053, was completely baseless.

 

The car he was riding in the back seat of was stopped and everyone ordered out. As he got out, Hueris raised his hands and told the officer "I have a concealed carry license, and I have a gun on me."  This is exactly what law enforcement asks that law-abiding concealed carriers do when stopped by police.

 

When he raised his hands above his head, his shirt rode up exposing his properly holstered handgun. The gun was only exposed because he raised his hands to surrender to the officer and inform him that he was armed.  He was arrested and prosecuted months after SB234 was passed clarifying that "brief" exposure is not illegal. The officer and State Attorney used that subjective "briefly exposed" language and the requirement that a licensee be "carrying a firearm in a concealed manner" in to justify the arrest and prosecution.

 

The Miami-Dade State Attorney's Office must have also known that they were in an untenable position because they quickly agreed to take the possibility of jail time off the table. Removing the possibility of imprisonment was not an olive branch offered in the interest of justice, it was in fact a Trojan Horse. This underhanded move was their only way to keep prosecuting the case because it had the calculated effect of taking away Mr. Mora's public defender. Once the Assistant State Attorney prosecuting the case had effectively maneuvered to deprive Mr. Mora of legal counsel, an offer was made. An offer so common in Florida that it is considered the standard plea deal... "You can retake the concealed course to get your license to carry back but kiss your gun goodbye."

 

Hueris knew he was getting the shaft despite having done nothing wrong, so he did what nobody before in Florida (that we know of) had done. He didn't sign the deal. This was a brave decision despite having no legal help at that time.

 

Florida Carry has consulting attorneys who do countless hours of pro bono work behalf of our members. Unfortunately, at that time we did not have a criminal defense attorney in Mr. Mora's area. That's when we reached out to Jesus "Jojo" Rodriguez. He didn't blink. Pro bono defense of a truly worthy young man who needs our help? "Absolutely!" was Jojo's immediate response. Our other attorneys and legal interns rallied together to provide support and Mr. Rodriguez, Florida Carry's newest consulting attorney, drove this case home. The charge of violating Florida's Open Carry Ban was dismissed with prejudice at trial. We finally won this fight that deprived Mr. Mora of his handgun for nearly six months.  Unfortunately the baseless criminal arrest record will follow him for life unless he is able to afford to have in expunged in five years.

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The Florida Attorney General’s position is that anyone carrying a gun should always be presumed to be committing a felony; and apparently, everyone is carrying…

"[A]n overwhelming majority of Floridians are not licensed to carry concealed weapons. As of August 31, 2012, the number of concealed weapon or firearm permits issued in Florida is 971,263. Where Florida had an estimated population of 19,057,542 in 2011, the percentage of the population that is licensed to carry a concealed weapon is only five percent (5%). Given the small percentage of the population that is licensed to carry a concealed firearm, the overwhelming majority of firearms, or 95%, are not licensed to be concealed. Thus, an officer’s suspicion that a firearm is not licensed would be reasonable because, in any given case, there would be, statistically speaking, a 95% likelihood of illegality."
State’s Brief on the Merits, Mackey v. State SC12-573 (Fla 2012) (internal citations omitted, emphasis added)

Obviously, this cannot go without answer. ”What will be our reply?!” you ask…

"It has been said that figures lie and liars figure. This statement has never been more appropriate than in response to the State’s contention that 95% of firearms in Florida are not licensed to be concealed. (State’s brief Pg. 20). Such a statement requires ignoring basic rules of statistics, ignoring the lack of available data, ignoring the fact that there is no requirement to license individual guns in the state (doing so is a felony, See Sec. 790.335, Fla. Stat.), and ignoring the fact that some people own multiple guns.

The State’s argument is that because only 5% of the population of Florida, holds a CWFL there is a 95% likelihood that a person with a firearm is committing a crime. Such a statement relies on several assumptions that are easily dismissed as common sense. In order for the State’s argument to be valid, one would first have to ignore all visitors to our state from the 35 states with reciprocity. One would also have to ignore all of the circumstances where no license is required to possess a firearm.Furthermore, the State’s argument also assumes that every man, woman and minor child is carrying a firearm at all times. Only by ignoring these statistical values and making a ridiculous assumption, could the State validate its absurd statistical argument that 95% of persons carrying firearms are doing so illegally."
Amicus Curiae Florida Carry, inc.’s Brief in Support of Appellant, Mackey v. State SC12-573 (Fla 2012) (emphasis added)

Our Attorney General says that not only do police and prosecutors have reasonable suspicion to frisk you any time you carry in FL, but that carrying also gives probable cause to search and arrest!

"Thus, the crime of carrying a concealed weapon is complete upon proof that the defendant knowingly carried a firearm that was concealed from the ordinary sight of another person. Accordingly, as held by the Third District, knowledge of the absence of a concealed weapons permit is not required in order for an officer to conduct an investigatory stop.

[P]ossession of a firearm did not amount merely reasonable suspicion, but to probable cause. See, e.g., State v. Navarro, 464 So. 2d 137 (Fla. 3d DCA 1985) (holding that a police officer’s observation of a bulge under the clothing of an individual, which the officer in his training and experience determined to be “the outline of a firearm[,] amounted to probable cause to believe that the individual was carrying a concealed weapon, justifying not merely a pat-down, but a search”)."
State’s Brief on the Merits, Mackey v. State SC12-573 (Fla 2012) (emphasis added)

Our answer… Shall not be Infringed!

"The rights of Floridians to keep and bear arms are well recognized in the U.S. and Florida Constitutions as well as in Florida general law. To allow detentions and arrests based solely on a person’s possession of a firearm without more, and then to require a person to prove through an affirmative defense that their possession of the firearm was lawful would swallow whole the right. As inconvenient as it might be, the need for enforcement of firearms laws preventing carrying by the unlawful and unskilled, must sometimes give way to the God-given right of the people to both lawfully keep and bear arms, and be free from unreasonable searches and seizures.

The state’s position can be summed up that in order for a citizen to exercise their right under the 2nd Amendment of the United States Constitution and Article I Sec. 8 of the Florida Constitution, the citizen must give up their rights under the Fourth Amendment, to be free from unreasonable search and seizure. According to the Attorney General, persons in possession of a firearm should be presumed to be committing a crime, and should be required to prove before a court of law that their conduct is in fact lawful. Should the Court find in the State’s favor in this case, this would be the first time in American jurisprudence that the exercise of a fundamental individual right has required the abdication of another fundamental right."
Amicus Curiae Florida Carry, inc.’s Brief in Support of Appellant, Mackey v. State SC12-573 (Fla 2012) (emphasis added)

But AG Bondi’s office says:

"The Florida concealed weapon or firearm license application requires an applicant to read and become knowledgeable of the provisions of Chapter 790, Florida Statutes and includes a copy of the statutes in that chapter in the application.

see also State v. Williams, 794 N.W.2d 867, 876 (Minn. 2011) (Page, J., concurring) (“[I]t is likely to come as a shock to all those people who have obtained a permit to carry, hold, or possess a pistol in a public place that by carrying, holding, or possessing the permitted pistol in a public place they subject themselves to arrest.” … )."

State’s Brief on the Merits, Mackey v. State SC12-573 (Fla 2012) (emphasis added)

Our Amicus Brief has was filed with the FL Supreme Court.

In 2013 the Florida Supreme Court ruled that concealed carry licensure was an affirmative defense to the crime of concealed carry.

In 2014 Florida Carry authored an amendment and subsequently and helped to pass SB 290 in 2015.  The 2015 law changes the concealed carry statute to make concealed carry licensure an element of the crime of unlicensed concealed carry.  http://laws.flrules.org/2015/44


Docket Overview: FL Supreme Court Case Number:  SC12-573
Florida Supreme Court Docket

 


 

 

 Date Docketed
Description
Filed By
Notes
03/20/2012 NOTICE-DISCRETIONARY JURIS (DIRECT CONFLICT) PT Anthony Mackey B08859 BY: PT Michael T. Davis 63374  
03/27/2012 JURIS INITIAL BRIEF PT Anthony Mackey B08859 BY: PT Michael T. Davis 63374 O&5 W/APPENDIX & E-MAIL
03/28/2012 No Fee - Insolvent    
04/16/2012 JURIS ANSWER BRIEF RS State Of Florida STATE BY: RS Shayne R. Burnham 85757 O&5 & E-MAIL
06/27/2012 ORDER-JURIS ACCEPT/BRIEF SCHED (OA LATER DATE)   The Court accepts jurisdiction of this case. Oral argument will be set by separate order. Counsel for the parties will be notified of the oral argument date approximately sixty days prior to oral argument. Petitioner's initial brief on the merits shall be served on or before July 23, 2012; respondent's answer brief on the merits shall be served twenty days after service of petitioner's initial brief on the merits; and petitioner's reply brief on the merits shall be served twenty days after service of respondent's answer brief on the merits. Please file an original and seven copies of all briefs. he Clerk of the Third District Court of Appeal shall file the original record which shall be properly indexed and paginated on or before August 27, 2012. The record shall include the briefs filed in the district court separately indexed.
07/20/2012 MOTION-EXT OF TIME (INITIAL BRIEF-MERITS) PT Anthony Mackey B08859 BY: PT Michael T. Davis 63374  
08/06/2012 ORDER-EXT OF TIME GR (INITIAL BRIEF-MERITS)   Petitioner's motion for extension of time is granted and petitioner is allowed to and including August 13, 2012, in which to serve the initial brief on the merits. NO FURTHER EXTENSIONS OF TIME WILL BE GRANTED TO PETITIONER FOR THE FILING OF THE INITIAL BRIEF ON THE MERITS. All other times will be extended accordingly. Per this Court's Administrative Order In Re: Mandatory Submission of Electronic Copies of Documents, AOSC04-84, dated September 13, 2004, counsel are directed to transmit a copy of all briefs in an electronic format as required by the provisions of that order.
08/14/2012 INITIAL BRIEF-MERITS PT Anthony Mackey B08859 BY: PT Michael T. Davis 63374 O&8 & EMAIL
09/04/2012 MOTION-EXT OF TIME (ANSWER BRIEF-MERITS) RS State Of Florida STATE BY: RS Shayne R. Burnham 85757  
09/13/2012 MOTION-AMICUS CURIAE MP Florida Carry, Inc. BY: MP Eric J. Friday 797901 AS INTERESTED PARTY
09/25/2012 ORDER-EXT OF TIME GR (ANSWER BRIEF-MERITS)   Respondent's motion for extension of time is granted and respondent is allowed to and including October 4, 2012, in which to serve the answer brief on the merits. NO FURTHER EXTENSIONS OF TIME WILL BE GRANTED TO RESPONDENT FOR THE FILING OF THE ANSWER BRIEF ON THE MERITS. All other times will be extended accordingly. Per this Court's Administrative Order In Re: Mandatory Submission of Electronic Copies of Documents, AOSC04-84, dated September 13, 2004, counsel are directed to transmit a copy of all briefs in an electronic format as required by the provisions of that order.
10/02/2012 ORDER-AMICUS CURIAE GR   The motion for leave to file brief as amicus curiae filed by Florida Carry, Inc., is hereby granted and they are allowed to file brief. The brief by the above referenced amicus curiae shall be served pursuant to Florida Rule of Appellate Procedure 9.370(c). Per this Court's Administrative Order In Re: Mandatory Submission of Electronic Copies of Documents, AOSC04-84, dated September 13, 2004, counsel are directed to transmit a copy of all briefs in an electronic format as required by the provisions of that order.
10/08/2012 AMICUS CURIAE INITIAL BRIEF-MERITS MP Florida Carry, Inc. BY: MP Eric J. Friday 797901 O&7 (NOT E-MAILED)
10/08/2012 ANSWER BRIEF-MERITS RS State Of Florida STATE BY: RS Shayne R. Burnham 85757 O&7 **STRICKEN** SEE ORDER DATED 10/23/2012
10/16/2012 MOTION-BRIEF AMENDMENT RS State Of Florida STATE BY: RS Shayne R. Burnham 85757 FILED AS "UNOPPOSED MOTION FOR LEAVE TO WITHDRAW AND SUBSTITUTE AMENDED BRIEF OF RESPONDENT ON THE MERITS - (0&7)
10/16/2012 ANSWER AMD BRIEF-MERITS RS State Of Florida STATE BY: RS Shayne R. Burnham 85757 O&7
10/23/2012 ORDER-BRIEF AMENDMENT GR   Respondent's unopposed motion for leave to withdraw and substitute amended brief of respondent on the merits is granted and said amended brief was filed with this Court on October 16, 2012. Respondent's brief on the merits filed with this Court on October 8, 2012, is hereby stricken.
11/06/2012 REPLY BRIEF-MERITS PT Anthony Mackey B08859 BY: PT Michael T. Davis 63374 O&7
12/18/2012 RECORD/TRANSCRIPT Hon. Mary Cay Blanks, Clerk D3 BY: Hon. Mary Cay Blanks, Clerk D3 CONSISTING OF 1 VOL. CC PAPERS; 2 VOLS OF RECORD; & 1 VOL SUPPL RECORD
12/19/2012 ORDER-OA SCHED (PREV ACCEPTED)   Order Amended to show oral argument time is at 10:00 A.M. The Court previously accepted jurisdiction. The Court will hear oral argument at 10:00 a.m., Wednesday, April 10, 2013. A maximum of twenty minutes to the side is allowed for the argument, but counsel is expected to use only so much of that time as is necessary. NO CONTINUANCES WILL BE GRANTED EXCEPT UPON A SHOWING OF EXTREME HARDSHIP.
12/19/2012 ORAL ARGUMENT CALENDAR    
12/26/2012 NOTICE-SUPPLEMENTAL AUTHORITY PT Anthony Mackey B08859 BY: PT Michael T. Davis 63374 O&1 (12/27/12: REQ'D 6 COPIES) - 6 COPIES REC'D 12/28/12
04/10/2013 ORAL ARGUMENT HELD    
10/17/2013 Decision  

... [W]e hold that the trial court properly denied Mackey’s motion to suppress, albeit for different reasons than those articulated by the Third District below.

The Conflict Case

Based on the prior analysis, we conclude that the decision in Regalado is factually distinguishable from the decision below. Here, Officer May initially approached Mackey in a non-threatening manner and participated in a consensual encounter. It was Mackey’s response to a question asked by Officer May during the consensual encounter that led Officer May to reasonably and articulably suspect that Mackey might be engaged in illegal activity. On the other hand, in Regalado, the officer stopped the defendant at gunpoint and ordered him to the ground solely on the basis that the officer believed the defendant was carrying a firearm in the waistband of his pants. Regalado, 25 So. 3d at 601-02. The officer did not ask the defendant any questions, and the Fourth District Court of Appeal specifically noted that “no information of suspicious criminal activity was provided to the officer other than appellant’s possession of a gun.” Id. at 601. Given the differing factual circumstances that preceded the two different stops at issue, we conclude that even though the decisions appear to be in conflict, the cases can be reconciled, and no actual conflict exists.

CONCLUSION

In light of the foregoing, we approve the holding—but not the reasoning—of the Third District Court of Appeal that the Terry stop of Mackey was valid under the United States and Florida Constitutions. We further approve the conclusion of the Third District that licensure is an affirmative defense to the crime of carrying a concealed weapon. See § 790.01, Fla. Stat. (2013). The case is remanded for further proceedings consistent with this opinion. It is so ordered

 


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