FL Attorney General Pam Bondi’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)
Oh, hell no! 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)
The Florida AG needs to read this memo written by the Cincinnati Chief of police. It says it all.
http://www.buckeyefirearms.org/node/8510
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Damn. And I generally like her.
But she is clearly wrong in this case. As you say, the argument is stupid on its face. It’s hard to rationalize how they could make so stupid an argument.
So what is she saying exactly? Does she want to make it harder for people to get permits or is she saying LEO’s ought to be able to arrest permit holders with concealed weapons or what ?
Im trying to find out what exactly is it that is going on.
She’s begging for trouble and inviting someone to be killed.
Another segment of the population she failed to consider was plainclothes police and armed security guards. (Remember the lunatic murderer in Norway was wearing a security guard uniform.) But more importantly, under this AG’s interpretation, just seeing a gun makes it a reasonable assumption that the person is committing a felony and can be stopped, searched, and detained. What is the police standard for detaining an armed person in the commission of a felony? It’s called a “felony take-down” and it involves drawn weapons and the “perp” being put on his belly on the ground and cuffed. By declaring this standard, this AG is begging for a tragedy like the Erik Scott murder. (http://www.firearmscoalition.org/index.php?option=com_content&view=article&id=616:hoplophobia-kills&catid=19:the-knox-update&Itemid=144)
Another quote from the State’s brief that needs to be shared:
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Well I carry a Glock 17 every day up here in VT, and I am not a felon or potential felon.
The Florida AG is wrong. I have carried a firearm concealed for many years in Florida and will continue to do so. I would not want to be the cop or cops that assume just because I carry a firearm for personal protection every day that, I am a criminal! I will see your sorry @$$ in court at my invitation! There are over 8 million of us in the United Staters and our numbers are growing every day! Don’t ever try that felony stop BS on me!
Since when have we become “guilty until proven innocent” for legal conduct? I’ll have to remember to name Ms Bondi at the top of my lawsuit should I be arrested for legally carrying a firearm.
This is one vote she should not count on at her next election, not with an attitude and statements such as hers.
Three thoughts:
1. I was under the impression that PEOPLE (not guns) were licensed for carry in Florida.
2. I cannot help but wonder if this isn’t a pre-emptive legal defensive maneuver to shield cops from being personally sued under HB45 for their actions. If the AG publicly issues a policy statement declaring the mere presence of a gun a crime in and of itself, then the waters of ‘qualified immunity’* could arguably be considered muddied.
3. Florida vs. JL.To the best of my knowledge there is no ‘printing’ language in FL law. Since the AG’s release speaks of an officer seeing a ‘bulge’, see also point two.
IIRC there was another case of a man at a street party with a gun who was specifically pointed out to the cops,but all their actions were overturned because in the courts opinion ‘the mere presence of the gun gave no evidence/indication that it was possessed illegally’ (or some such language). I can’t remember if it was Florida, Puerto Rico, Guam or some other place.
*where the legal standard seems to be whether the law was ‘clear’ and “the officer should have reasonably known” what it was.
Jeff I believe has it right when he said a felony take down should have been made. It is against Florida law to have an observable firearm in your possession. I think the case was mischarged and the plaintiff screwed up. The cop screwed up by not doing a takedown. Now this affects CCW holders. By the AG assertions, she puts herself in a precarious position. Since 1987 Florida has exercised the firearms issue to the exclusion of the munincipalities. I don’t understand why the States brief keeps referencing Robarge. Robarge should have been nullified. The other point which sticks out is “consensual”. Does this mean we should ignore an officer until they forcibly vie for our attention?