Sunday, November 3, 2013

Why only lawyers should read appellate court cases

I just received the following email regarding a new Florida Supreme Court case that was decided October 17, 2013.  [Mackey v. State, 38 Fla. L. Weekly S 724 (Fla. 2013)]. It seems this case is unnecessarily upsetting lots of folks over something that is nothing really new or disturbing.  My only possible explanation why they are upset is because they're not lawyers -- and my personal opinion is that unless you're a lawyer or a law student -- you probably have no business reading case law, because it will likely only confuse you.   Such is the email question in point:

I have had two former students contact me about the Mackey Vs. State ruling. They as well as many in the community seem to be a little scared about be arrested for Carrying a concealed firearm. Even though they are holders of a Fl concealed weapons Licensee. As I am sure you are aware the Fl Supreme Court ruled that the permit is nothing more than a defense to the charged with a violation of 790.01(2) thus giving Police a free for all on arresting legal permit holders.

Answer:    HUH???

                 No way in the world did the Mackey case mean to give that kind of  impression, whatsoever!

                Mackey was a case where an individual who was in an area known for drugs and weapons was spotted by an officer who clearly saw a bulge in Mackey's waist area, and the visible butt of a firearm.  The officer approached Mackey,  asked if he was armed (which Mackey denied), and then did a weapon pat-down despite the fact that Mackey did not give him permission to do so.  When he found the weapon, he asked Mackey if he had a CWP -- Mackey answered "no" -- and was arrested. The arrest also turned up drugs.

           During a motion to suppress,  Mackey's attorney argued that the pat down was unlawful as there was no reasonable suspicion to believe he wasn't carrying the firearm lawfully since so many folks have a CWP.   The Supreme Court held there was plenty of probable cause to believe Mackey was armed as the officer actually saw the gun butt, and also there was an independent basis for the pat down.  The Court held that when an officer has a reasonable basis to believe someone is armed, and other circumstances indicate the person is violating the law  (ie: the obvious lie to the officer combined with being in an area known for narcotics and weapons  -- it is reasonable to do a pat-down for officer safety).  The Court also held that a CWP is "an affirmative defense" to the unlawful carry of a concealed weapon.  However,  and importantly,  the Florida Supreme Court also refused to reverse a similar case where a lower appellate court had held it improper to frisk an individual solely to determine if they were armed, without any other reasonable suspicion.

 The legal significance of the Opinion is NOT that you can be arrested if you have a CWP on your person!   That would be legally insane!  If that happened -- the cop would probably be looking for another job shortly thereafter.  The significance is that circumstances may justify a pat down where there is a reasonable belief a subject is armed,  and other circumstances indicated evasive or other actions by the individual consistent with illegal conduct -- especially if the occurance is in a  drug or high crime area.

So . . .  if you somehow took the time to find and read this case instead of watching NFL or college football -- as any true red-blooded American male should have been doing  -- I remind you of the immoral words of Ebenezer Scrooge in Dickens timeless classic: A Christmas Carol:

"Bah!  Humbug!"

Hope you all can now get a good night's sleep.  The case does not mean a CWP holder can be arrested for carrying concealed.  No way!


  1. Jon. I have to disagree. While you may be accurately quoting the Court, the 15th Cir. State Attorney has a different interpretation he is giving to LEO's. I think when it comes to the on the street encounter his opinion will carry more weight than yours or mine.

    The 4th D.C.A. in Regalado found as
    a matter of law, “… the only information
    received by the officer was
    that the individual had a gun. Possession
    of a gun is not illegal in
    Florida. Even if it is concealed, it is
    not illegal if the carrier has obtained
    a concealed weapons permit. Although
    the officer observed a bulge in
    Regalado’s waistband, which in his
    experience looked like a gun, no
    facts and circumstances were presented
    to show that Regalado’s carrying
    of a concealed weapon was
    without a permit and thus illegal...”
    The Florida’s Supreme Court’s
    ruling in Mackey is inconsistent with
    this statement. 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. Taken from Legal Eagle Nov. 2013.

    1. First, if you have your CWP on you as you are required -- any officer who ignores your assertion is looking for a civil rights and malicious prosecution suit, and the city will get hit by false arrest and a civil rights suit (if that was also city policy). I handled civil rights cases for 11 years. No court would allow an arrest under those circumstances. However, what the Florida Supreme Court was talking about was a "Terry" pat-down frisk -- which likely will be allowed. If you have illegal drugs on you -- sure -- maybe you'll be arrested -- but not for the CCF unless the cop is insane. Again, that's if you have the CWP on your person. If not -- I still think if you tell the cop you have a CWP he has a duty to check it since he'll have an FCIC response in less than three minutes. Still false arrest -- probably malicious prosecution -- but the feds would probably turn you down on the civil rights end.

      So . . . while anything is possible . . . and while you might suffer a "frisk" -- an arrest isn't going to happen unless you also have drugs on you.

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