Thankfully the Florida Supreme Court has had some legal education. Hopefully they will understand their own previous holdings.
Here’s an exchange I had with (another person).
“I see what you are saying. You want the court to view the LACK of a valid CWFL as an element of the crime of CCW under 790.01, as it was under 790.05, rather than as an exception which provides an affirmative defense. This might be difficult, as not only Mackey, but Watt, has affirmed that, due to the construction of 790.01, possession of a valid CWFL is an exception which provides a binding affirmative defense in the case of carrying a concealed weapon. I think that the Supreme Court will decide that, unless some damage is shown to have arisen from this, no change is necessary.
The absurd example I use of an officer kicking down your door to arrest you in your home is exactly the problem that has arisen if both the Mackey and Bethel decisions stand.
However, Mackey’s assertion was that, based upon Regalado, the stop itself was not warranted as the officer had no knowledge that Mackey did not have a valid CWFL. Mackey had no such license, nor was he eligible to obtain one due to his felony record. Whether the possession of a CWFL is an affirmative defense or not is not relevent to Mackey.
Actually it is completely relevant. Mackey and Bethel were both not known by the officer to be felons before the search and arrest took place. Had the officer known them to be felons before the search (and therefore not allowed to possess firearms), the searches, and arrests would have been fine. The officers had no such prior knowledge. The subjects were not engaged in any apparent criminal activity other than that they were bearing arms. (Mackey concealed and Bethel unconcealed). Because the officer had no knowledge of their criminal history, he was required to treat them exactly as he is required to treat you or I.
I can see no reason why the Court would reverse Mackey or directly address whether the wording of 790.01 is an exception providing an affirmative defense. I am afraid that you are going to have to wait for a person to get arrested for CCW or CCF while in possession of a valid CWFL to address this subject. Good luck anyway.
Until Mackey and/or Bethel is overturned there are nearly 1 million CWFL holders in this state breaking the law every time they carry. Their 4th amendment right is gone because any time an officer sees a bulge they can stop and frisk you. They can legally arrest you and put you in jail until you present your affirmative defense to a judge at arraignment.In fact, because of Norman’s finding that 790.25 is also just an affirmative defense, even police officers on duty are committing the crime of carrying (openly and/or concealed) every time they go to work. As it stands right now, with these cases standing. There is no Right to Bear Arms in this state other than possession of:
(a) A self-defense chemical spray.
(b) A nonlethal stun gun or dart-firing stun gun or other nonlethal electric weapon or device that is designed solely for defensive purposes.
