Firearms Lawyer Blog

As Miami-Dade firearms criminal defense attorneys, we were disappointed to see an article about misbehavior around firearms by two high school students. The Fort Myers News-Press reported May 7 that a 15-year-old male juvenile was detained for bringing a handgun to Fort Myers High School that week. That incident closely followed the discovery of a semi-automatic handgun on another 15-year-old at Lehigh Senior High School, named as David Abel Rodriguez. That teenager was arrested. Charges against the first teenager were pending, according to the newspaper, and officers continued to investigate the incident.

According to the newspaper, the unnamed juvenile had the gun in his duffel bag during class. He was not accused of using it inappropriately. Two other students reported the gun to the school’s assistant principal, who in turn called the Fort Myers police. School authorities immediately detained the teenager. After a search turned up the handgun, he was taken to Vista Behavioral Crisis Center, a psychiatric facility. In the earlier incident, Rodriguez was caught trespassing, the newspaper reported. When a deputy stopped him, that deputy found the semi-automatic handgun. The charges against Rodriguez were not reported, but could include trespassing as well as possession of a firearm by a minor under 18.

Our West Palm Beach gun crimes defense lawyers don’t condone this type of behavior, in part because bringing a gun to school could easily land that gun in the hands of people who don’t know how to use it properly. But we can’t help but notice that neither teen was accused of doing anything dangerous with the firearms. Rather, all of the crimes that are likely to be charged against them, aside from the possible trespassing charge, spring from their status as juveniles. A minor may not possess a true firearm in Florida unless he or she is lawfully hunting under adult supervision. (BB guns, gas and air guns and electronic weapons are an exception.) Furthermore, most people of any age are prohibited from having guns on a school campus. These are crimes that spring from the teens’ circumstances and status, not from violent actions on their part. We hope authorities take this into account when deciding their penalties.

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As NRA referral attorneys and Miami-Dade firearms criminal defense attorneys, we were pleased to see a nod to gun rights as the Legislature comes to a close. As The Buzz blog of the St. Petersburg Times reported April 26, the amendment is one sentence on an agricultural bill, reading “However, a (firearm) licensee may not be prevented from transporting or storing a lawful firearm in a private vehicle for lawful purposes if the vehicle is otherwise lawfully present.” The NRA strongly backs the amendment, saying it would allow lawful people with concealed weapons permits to exercise their constitutional rights. The organization is fighting the Florida Chamber of Commerce, which cast the fight as an issue of private property owners’ rights.

The amendment is similar a previous Florida law that made it illegal for businesses to prohibit employees with concealed carry permits from bringing their guns to work and leaving them in a locked car in the parking lot. The Florida Chamber of Commerce opposed that bill as well, and even sued to overturn it. However, the court sided with the rights of gun owners, ruling that employers may not interfere with workers’ rights to carry a concealed weapon legally and safely. If the amendment currently before the Legislature passes, the law would extend to any private-property parking lot of a business, even if that business bans guns. In an email to supporters, the NRA noted that a father wanting to visit his son’s grave currently has to go home and put his gun away before visiting, even though the gun would stay in the car.

Our West Palm Beach gun crimes defense lawyers support this amendment. We believe strongly in the Second Amendment, and we do not believe it stops applying just because a gun owner steps onto private property. This amendment specifies that the firearm must be lawful; it must be transported or stored for lawful purposes; and the vehicle must be lawfully present. That is, nothing in this amendment can be construed to endorse illegal guns or illegal behavior by gun owners. There are numerous legitimate reasons why someone might want to carry a gun in a car, including protection as well as trips to the shooting range or hunting trips. If the amendment doesn’t pass, law-abiding gun owners who want to stop for a sandwich on the way home could be kicked out of such a business despite not doing anything wrong.

Continue reading "NRA Rallies in Favor of Legislative Amendment Allowing Motorists to Carry Guns in Cars" »

As Fort Lauderdale firearms criminal defense attorneys, we were disturbed to read last year that some couples looking to adopt a child in Florida had been asked whether they had guns in their homes. So we were pleased to see that the Legislature quickly put an end to the issue last week by approving a bill banning such questions. The Palm Beach Post reported March 19 that the measure passed the Florida House unanimously and got all but two votes in the Florida Senate. The measure’s author said it bars adoption agencies for making gun ownership a condition of adopting or from requiring prospective parents to answer questions about it. All applicants to adopt will also receive a copy of state laws concerning safe storage of firearms.

The NRA-backed bill grew out of a 2009 controversy involving a private adoption agency contracted to the Florida Department of Children and Families. That agency used a form that included a question about the couple’s gun ownership. At least one couple went to a state legislator to complain that the question violated their Second Amendment rights. More specifically, the question raised concerns in some circles that the question could be used to create a “gun registry,” which is forbidden by Florida law. The agency stopped using the form after DCF explained this concern, and state officials said they didn’t know of anyone being denied a chance to adopt because of gun ownership. Nonetheless, the bill’s Senate sponsor said it may prevent couples from adopting overseas rather than submitting to Florida’s adoption questions.

We applaud any measure that helps get more children into loving homes. And as Miami gun crimes defense attorneys, we particularly applaud this bill for erasing any lingering prejudice against gun owners. Questions to prospective parents about their firearms ownership imply that the asker thinks owning a gun raises concerns about their fitness as parents. In fact, guns are not the problem -- responsibility around guns is the problem. Millions of Americans have grown up safely, and are still growing up safely, in homes with guns. Children are only in great danger in the homes of people who use or store guns irresponsibly. Furthermore, we’re pleased to see that this bill heads off any hint of a “gun registry,” something that could lead to government theft of law-abiding citizens’ guns and eventually, tyranny.

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The federal Armed Career Criminal Act substantially increases the sentence for a gun crime under certain circumstances. If the accused has been convicted of three or more violent felonies, prosecutors can use the ACCA to require a mandatory sentence of 15 years in prison for any federal firearms crime -- even nonviolent ones. Our Fort Lauderdale firearms criminal defense attorneys have always had philosophical problems with mandatory minimum sentencing, particularly for nonviolent crimes like sales and possession. This month, the Florida Times-Union reported March 15, the U.S. Supreme Court made a ruling in a Florida case suggesting that some justices agreed.

Johnson v. United States started when Curtis Darnell Johnson was accused of possession of ammunition by a convicted felon. He pleaded guilty, which would normally get him a sentence of two or three years in prison, although ten years is the maximum. However, prosecutors in that case used his prior felony convictions -- for burglary, cocaine possession and battery -- to invoke the ACCA, increasing his minimum sentence substantially. One of those convictions was a Florida state conviction for simple battery, which was automatically charged as a felony because he had a previous battery conviction. Johnson’s public defender, Lisa Call, argued that the battery conviction doesn’t meet the requirements of the ACCA because battery is not necessarily a violent crime in Florida. A 7-2 majority of the justices agreed.

As Miami-Dade gun crimes defense lawyers, we are very pleased to see the ACCA clarified. In Florida, you can be convicted of simple battery for any unwanted touching. The Florida Supreme Court has ruled that this can include a tap on the shoulder. That means felony battery could include a lot of behaviors that wouldn’t normally be considered violent. In most cases, judges can take circumstances like this into account, but not under mandatory minimum sentence laws like the ACCA, because mandatory minimums leave judges almost no flexibility. This ruling doesn’t change that, unfortunately, but it does help reduce the chances of an unfair outcome by requiring that the “violent felony convictions” that trigger the law actually be violent. As the article notes, this will force prosecutors and defense attorneys to take a careful look at prior convictions before agreeing that the ACCA applies.

Continue reading "U.S. Supreme Court Clarifies Firearms Sentencing Law in Jacksonville Man’s Case" »

Our Miami gun crimes defense attorneys are anticipating an important ruling from the United States Supreme Court this session. As the Christian Science Monitor reported March 1, the justices will hear oral arguments March 2 in a case that could change gun control across the United States. In McDonald v. Chicago, Otis McDonald, a man in his seventies from the South Side of Chicago, is challenging that city’s ban on owning handguns. He says he’d like a gun to protect himself and his wife from gang members. In essence, he and his attorneys are asking the Supreme Court to decide whether the Second Amendment right to bear arms applies to state and local gun-control laws. The justices are expected to say that it does.

In some ways, the case is repeat of D.C. v. Heller, the June 2008 ruling that struck down a similar ban in Washington, D.C. In that case, the court said the Second Amendment gives Americans the right to own firearms and use them legally, even if they are not part of a government “militia.” However, the justices stopped short of invalidating all gun controls, such as restrictions on carrying firearms into schools. That ruling applied only to federal land, which includes the capital but no other U.S. cities. That meant McDonald and others like him had to file their own cases to determine whether the court’s interpretation of the Second Amendment in Heller applies to state and local laws as well. Other state laws that might come under fire include bans on carrying a loaded weapon in public and possession bans for people convicted of domestic violence.

In the past, the court has applied parts of the Bill of Rights to states by using the Fourteenth Amendment’s prohibition that “no state shall deprive any person of life, liberty or property without due process of law.” It is expected to do that in this case. However, the Chicago plaintiffs and some conservative legal observers prefer that the court use another part of the Fourteenth Amendment, which forbids states from making laws “which abridge the privileges or immunities” of citizens. To do that, it has to overturn three rulings from the 1870s and 1880s that undercut the privileges and immunities clause and specifically said the Second Amendment applies only to the federal government.

Our West Palm Beach firearms criminal defense lawyers will not presume to tell the court which argument is best. However, we hope that the court meets public expectations by expanding its ruling in Heller to Chicago and everywhere else in the United States. A full ban on handguns is against the plain language of the Second Amendment. The court has expanded many other parts of the Bill of Rights to the states, and this right is no different except that it’s less popular. And, contrary to what the defendants claim, a ruling for McDonald wouldn’t necessarily allow just anyone to get their hands on a dangerous weapon. The majority opinion in Heller specifically said states are free to place certain restrictions on gun ownership.

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As Miami firearms criminal defense attorneys, we’re pleased by the news that a new law will expand the areas where we can exercise our Second Amendment right to bear arms. On Feb. 22, CBS4 reported, a new federal law makes it legal to possess and carry a loaded firearm in a national park or national wildlife refuge. Previously, guns were permitted in parks only if they were not loaded and locked away in a difficult-to-reach place like a trunk. The bill was added to legislation that regulates the credit card industry, much of which also took effect Monday, allowing it to pass with bipartisan support.

The NRA hailed the new law as a victory for gun rights and gun owners, who may now defend themselves from attacking wildlife or other human beings in the parks. However, firearms experts and the media cautioned gun owners that the law doesn’t mean they can carry a loaded weapon into any park at any time for any reason. Most importantly, Florida state gun laws still apply within Florida’s national parks and wildlife refuges. Visitors to the Everglades, Biscayne, Big Cypress and Dry Tortugas must still have a permit for concealed carry, for example, and keep firearms away from unsupervised minors. The law doesn’t change hunting regulations, and park visitors must still comply with criminal laws that apply to shooting other human beings. And federal law still bans guns from rangers’ offices and visitors’ centers.

Our West Palm Beach gun crimes defense lawyers are delighted to see this victory for responsible gun owners take effect. The national parks may be officially unarmed -- even park rangers don’t usually carry guns -- but they are the site of a surprising amount of violence. In particular, the illicit drug industry uses national parks as a place to grow illegal drugs, and the “farmers” don’t hesitate to illegally carry guns to defend their crops. This has helped make national park rangers the most assaulted federal law enforcement officers for the past seven years. Similarly, wildlife poachers carry guns regardless of whether it’s legal, leaving law-abiding citizens without equalizing protection. And while animal attacks are rare, having a gun can make a difference between life and death when they do happen.

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Florida’s “stand your ground” law allows citizens to use their firearms to protect themselves from an intruder into their homes or vehicles, or an attacker in a public place. This was hailed by firearms law experts, including our own Fort Lauderdale firearms criminal defense attorneys, as an advance that cleared up legal ambiguities and took away the possibility of prison for law-abiding gun owners who act in self-defense. However, it doesn’t apply to all firearms charges in Florida, which led to an interesting result Feb. 16. According to an article in the Palm Beach Post, a young man was acquitted of murder under the stand your ground law, but convicted of the less serious crime of discharging a firearm from a vehicle.

William Wilkerson was originally accused of killing Jason Payne in 2007, outside of a party where many people had been drinking. Wilkerson had reportedly been flirting with Payne’s girlfriend. Wilkerson was sitting in his vehicle, getting ready to leave, when Payne smashed the driver’s side window. Wilkerson fired his gun three times, killing Payne. The Palm Beach County jury determined that the first two shots were acts of self-defense under the stand your ground law, which authorizes lethal force in cases where someone is trying to forcibly enter a vehicle, or attacks another in public. However, the jury found that the third shot was unnecessary and endangered other people at the party. He was sentenced to four years in prison followed by four years of probation.

As West Palm Beach gun crimes defense lawyers, we can’t help but notice that Wilkerson was convicted of discharging a firearm from a vehicle -- not discharging a firearm in public, a misdemeanor carrying up to a year in prison. As you might guess, the crime of discharging a firearm from a vehicle was intended to cover drive-by shootings -- not cases of possibly overzealous self-defense. That is, Wilkerson was convicted under a law designed for very different circumstances. In fact, this application of the law may conflict with the stand your ground law, since that law specifically identifies a vehicle break-in as a circumstance where self-defense is allowed. When quick action is needed, it may be hard to tell whether another shot is a legal act of self-defense or a crime.

Continue reading "Wellington Man Acquitted of Murder But Sentenced for Firearms Charge" »