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August 2020
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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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