Florida's "Better Safe Than Sorry" Legal Standard for Confiscating Your Property---and other cases on the radar screen

A number of intriguing cases are percolating within several county and district courts in Florida. As is my practise I've included court names, case numbers and styles to assist any of you legal wonks who enjoy researching these cases.

Here's a summary of the legal actions we're following:

Photography is not a crime

Case No.: 2:19-cv-0484 in United States District Court, Middle District of Florida: On October 31, 2019 the City of Punta Gorda responded to the plaintiffs motion for preliminary injunction to a lawsuit in federal court pertaining to a recording prohibition contained within Chapter 15 of the City Code. 

In court filings reviewed by County Examiner, the City asserts only persons who engage in legitimate public business with city officers or employees are authorized to access certain public properties,therefore someone who is a non-resident wouldn't and doesn't have a constitutional right to use public spaces at all times and under all circumstances.

Non-US Citizens Can't Get their Story Straight at U.S, Port of Entry

Miami Dade County, cases F-19-020143 through 146 involve four flight attendants arrested at Miami International Airport in October 2019 on charges of money laundering and unauthorized money transfer. Court records reveal all four are subject to immigration holds and are due back in court for arraignment on November 20, 2019.

Was it terrorism?

Case 1:19-cr-20603 in United States District Court, Southern District of Florida: a jury trial date is set for December 9, 2019 before Judge Marcia Cooke for Abdul Majeed Marouf Ahmed Alani. The former American Airlines mechanic was charged with sabotaging an airplane in July 2019. Few news outlets other than County Examiner reported on and published court documents revealing the presence of an Arabic translator during courtroom proceedings. 

Florida's "Better Safe Than Sorry" Legal Standard for Confiscating Your Property

Florida's Second District Court of Appeals heard oral arguments in case number 18-4631 styled DTM v Grady Judd, Sheriff of Polk County challenging the states' risk protection order act section of SB 7026. 

In her brief and arguments before the court, Orlando attorney Kendra Parris makes public the Constitutional concerns set forth in this firearm confiscation act, specifically the due process and vagueness concerns, the selective application and unlawful delegation of legislative and prosecutorial authority in violation of the Florida Constitution.

In Jefferson Eugene Davis v Gilchrist County Sheriff's Office, case 1D18-3938 Florida's First District Court of Appeals upheld the statutes constitutionality, finding no abuse of discretion or denial of due process. I'm forecasting the ERPO Act will eventually end up in front of the Florida Supreme Court.

Visa Overstay charged with First Degree murder of Fort Myers Police Officer

A competency hearing is scheduled for December 19, 2019 in case 2018-CF-017498 styled The State of Florida v Wisner Desmaret. 

Lee County Court records reveal an ICE (Immigration and Customs Enforcement) hold placed on the man facing first degree premeditated homicide of a Fort Myers police officer in 2018. Desmaret is also charged with first degree robbery with a firearm, battery on an officer - firefighter - EMT, aggravated assault on an officer - firefighter- EMT and grand theft. 

 

Report: Florida “red flag” law resulted in 1,443 petitions filed to confiscate firearms

1,443 petitions for temporary ex-parte risk protection orders were filed across 54 Florida counties from March 2018 through February 2019, according to a report obtained by County Examiner.

Prepared by the Florida Office of State Court Administrators the document reveals Broward, Polk and Pinellas law enforcement topped the list of counties reporting the filing of temporary firearm confiscation orders for the above-mentioned period; 251, 248, and 202 respectively. Thirteen Florida counties presumably filed zero firearm confiscation orders.

While a footnote specifies the statistics were provided to OSCA by each Clerk of the Court and have not been audited for accuracy, examining the number of motions filed to extend the ban on firearm possession to one year raises additional questions about the origins and motivations for the temporary ERPO filing in the first place.

For example, Miami-Dade County Clerk of the Courts reported 88 petitions for temporary firearm confiscations and extended a one-year ban on firearm possession in 43 of those situations. Does a one-year ban on firearm ownership meet the definition of “temporary”?

Meanwhile the OSCA report reveals Broward, Polk and Pinellas law enforcement, who together presumably filed 701 temporary firearm confiscation orders, ultimately filed ZERO motions to extend the firearm ownership ban to one year. Does that equate to successfully stopping a person before something bad happens?

You can view the OSCA report here.

County Examiner previously reported on a brief filed in Florida’s Second District Court of Appeals challenging several provisions of Florida’s gun confiscation act, most notably due process concerns, allowing admission of hearsay evidence and the unlawful delegation of prosecutorial authority to law enforcement in violation of the Florida Constitution.

You can view the court docket here.

Attorney brief corroborates every concern firearm owners expressed about Florida’s disastrous gun confiscation act

• Rushed into law aka “never let a good crisis go to waste”? Check.
• Supported by the NRA ? Check.
• Act language copied from a gun-grabbing state? Check.
• Due process concerns? Check.
• Admission of hearsay evidence allowed? Check.

An appeal to Florida’s Second District Court of Appeals in Lakeland, FL argues a statute created through the passage of gun control legislation signed into law by former Governor Rick Scott is unconstitutional on its face.

The brief, filed by Orlando attorney Kendra E. Parris documents the facts of her clients' case and interestingly enough affirms the very legislative process and legal concerns Florida firearms owners expressed about the disastrous bill during and in the aftermath of its passage. This blog examines three such concerns below.

The case is styled D.T.M. v Grady Judd, Sheriff of Polk County. Case #2D18-4631

SB 7026 proceeds through the Florida Legislature in under three weeks 

In March 2018 former Florida Governor – now United States Senator Rick Scott - signed SB 7026 into law. Among 2A supporters, discussion of the “Extreme Risk Protection Order” Act section of the bill initially centered on very troubling circumstances surrounding support for the legislation and its rushed passage through the Legislature in under three weeks.

Media report surfaces of NRA support for the ERPO 

As SB 7026 progressed through the Legislature an independent news account surfaced; an anonymous Republican source alleged National Rifle Association support and orchestration of the bills passage through Tallahassee. Was this true?

On her blog Ms. Parris writes:

 “Interestingly, and perhaps ironically, the NRA came out in favor of the risk protection order scheme, although the organization is challenging the constitutionality of the age increase and waiting period."

Origination of the ERPO Act language

A third question emerged among firearm owners. How could the language of the bill be crafted so quickly? A review of the Florida Senate website revealed SB 7026 was on the Senate Rules Committee agenda for 2/26/2018, twelve days after the February 14th shooting at Marjory Stoneman Douglas High School.

Seems the text of the ERPO was copied from a Washington State ballot referendum

Ms. Parris posts:

 “At the time the Act was passed, only five other states had similar “red flag law” legislation: Indiana, Connecticut, Oregon, Washington and California. The Florida law was derived almost word-for-word from the Washington “Extreme Risk Protection Order Act”, Wash. Rev. Code 7.94 which passed by voter referendum in 2016.”

On March 9, 2018 then Governor Rick Scott signed SB 7026 into law.

The brief filed with the Second DCA also makes public the due process concerns, shielding of law enforcement from civil immunity for acts related to the ERPO process, allowing the admission of hearsay evidence –SAY WHAT???---and the unlawful delegation of prosecutorial authority to law enforcement set forth in this bill, in violation of the Florida Constitution. Almost every legitimate legislative procedural and legal nightmare expressed by Florida firearm owners about this disaster of a bill are outlined in Ms. Parris’ brief. You can read it all here.