Florida AG Bondi Fights Against Gun Rights...

[jmortimer]

"This isn't a question of the presumption of innocence. That is a rule of evidence that applies in court."
This is an important point as the public and media parrots this all the time. Yes we can presume that someone is guilty, just not the trier of fact, i.e. the judge and/or jury.

 

[Aguila Blanca]

This isn't a question of the presumption of innocence. That is a rule of evidence that applies in court. It means that it is the persecution's burden to prove in court the defendant's guilty.

Well, in the Philadelphia case the court certainly agreed with you that the young man was being subjected to persecution (sic).

I understand that the ruling in Terry does not require probable cause, but it DOES require that the officer have a reasonable suspicion based on clearly articulable facts that a crime is being committed. And the Pennsylvania court determined that, since open carry is legal and that the officer had nothing on which to base a suspicion that the young man did NOT have a LTCF, the court held that the young man had been unlawfully detained and that the City of Brotherly Love owed him monetary damages as well as an apology.

How is the Florida law substantively different? If I have a Florida carry permit (which I do), the law saying that concealed carry is a crime DOES NOT APPLY TO ME. If the law does not apply to me, there is no way I can be guilty of violating it. So if a police officer sees me on the street and catches a glimpse of my pistol under my jacket ... what "clearly articulable facts" can he cite to support a reasonable suspicion that I am violating a law ... which does not apply to me?

"But he doesn't know the law doesn't apply until he investigates," you reply. But that's not good enough. That's no different from stopping every car on the street to determine that the driver has a driver's license. Between resident and non-resident permits, Florida has issued hundreds of thousands of carry permits. Your logic would allow officers to stop, detain and investigate potentially hundreds of thousands of people. I don't think that's quite what the 4th Amendment had in mind. I respectfully submit that the police officer's perceiving that I am carrying does not rise to a satisfactory level of clearly articulable facts that I am carrying illegally. He needs more -- such as some way of knowing that I am a prohibited person and therefore cannot be carrying legally.

There was a case discussed several weeks ago (here, I believe) about a motorcyclist who was arrested in Maryland for carrying a handgun without a Maryland permit. The biker argued (IIRC) that the officer stopped him "because he was a biker." The officer (and the state) countered that the biker was wearing "colors" of a biker gang while riding in the "turf" of a rival gang, and that the officer didn't think any biker would enter enemy territory unarmed. That would be another example of the "totality of the circumstances."

IMHO, merely seeing the gun isn't enough to establish reasonable suspicion for a Terry stop. (In Florida. Chicago is a different story)

 

[KyJim]

If i understand this correctly, it seems that a suspicion (subjective) of one having a gun means that they are subjected to a search. I dislike the notion that there is an inherent negative quality associated with the carrying of a weapon. "He might have a gun, so he's probably doing something wrong."

First, to conduct a Terry stop/frisk there must be a reasonable (objective) and articulable suspicion that the person has violated or is in the process of violating the law or carrying contraband. For a the safety frisk, there must be a separate, reasonable (objective) suspicion the suspect might be armed. If carrying concealed is not unlawful in that state/municipality, then merely suspecting one of carrying a gun does not justify a stop or frisk. If it is illegal to do so, then a stop and frisk may be warranted if there is reasonable suspicion based on the totality of the circumstances.

Keep in mind that the right to carry concealed has generally NOT been protected. States have had the right to ban or regulate concealed carry. The federal 2A rights are still being explored.

 

[Aguila Blanca]

Actually, it goes a bit beyond the preceding two posts.

As noted, a "Terry stop" is allowed if/when an officer has a "reasonable suspicion" of criminal activity. As KyJim stated, the suspicion can't be a hunch, it must be founded in clearly articulable facts.

But, a Terry stop is still not an arrest based on probable cause. It is a preliminary, investigative stop. The officer involved is NOT allowed to conduct a full-scale search of the "subject." The officer is allowed to conduct a quick pat-down (a so-called "Terry frisk"), for the sole purpose of determining whether or not the subject is armed and thus might pose a significant threat to the officer's safety.

But in the case in point, the entire incident arose because an officer saw a gun. So there was no need for a frisk of any sort, because the officer already knew the subject was armed. The law specifically provides that concealed carry is not illegal if you have a permit. In fact, as I have stated multiple times, the law itself specifically says that it does not even apply if the subject has a permit.

Therefore, the officer had no legitimate basis, in light of Terry, to make even an investigatory stop. He had NO clearly articulable facts to suggest that a law was being broken.