Uber and Guns

A Florida Appeals Court has ruled that Uber, and other ride-sharing drivers, are independent contractors and not employees. I regularly receive calls from on-demand drivers asking if they can legally carry a firearm in their vehicle despite the Uber policy prohibiting drivers who use their app from lawfully carrying weapons. Some employers play games with the classification of employees claiming that they are employees for some purposes and independent contractors when it suits them. Employers can’t have it both ways. In this case Uber argued that the drivers are independent contractors and the court agreed. This ruling strengthens the position of law abiding ride-sharing drivers that they can lawfully defend themselves by carrying a weapon in their vehicles. I anticipate Uber will maintain it’s policy and further litigation will ensue.

http://www.dailybusinessreview.com/id=1202778155882/Appeals-Court-Uber-Drivers-Are-Contractors-Not-Employees?et=editorial&bu=Daily%20Business%20Review&cn=20170201&src=EMC-Email&pt=Breaking%20News&slreturn=20170101115532

Posted in News

Florida Supreme Court Issues Important Case for Gun Owners

LEGAL UPDATE:

Yesterday the Florida Supreme Court issued an obscure, but important ruling for Florida gun owners. Prior to the ruling, those who pleaded guilty but had adjudication withheld on a felony were told by the state that they were not “convicted” for purposes of firearms ownership and therefore could possess firearms. Under the federal court’s interpretation of Florida law, a person was considered guilty if they entered a guilty plea even if adjudication was withheld.

This caused great confusion for people in this situation and exposed them to serious federal criminal penalties for being a felon in possession of a firearm. Unfortunately, many criminal defense attorneys were giving their clients inaccurate legal counsel because they were unaware of the federal case law.

The Florida Supreme Court should be commended for their unanimous ruling in this case.

Here is a link to the opinion for those interested.

http://www.floridasupremecourt.org/decisions/2016/sc15-506.pdf

Posted in Constitutional Law, Legal

Lions and Tigers and Databases! Oh my!

DSC09633-Edit-2The recent angst over databases for foreign refugees got me thinking about the databases that already exist for American citizens. Every time a firearm is purchased from a federally licensed dealer, the transaction can only be approved if the buyer completes a background check. That check is completed by the FBI and run through the NICS, National Instant Criminal Background Check System. Florida is a point of contact state, meaning the background checks are performed by the FDLE, Florida Department of Law Enforcement. The FBI website claims that more than 100 million background checks have been performed and that over 700,000 denials have been issued.

What the FBI does not tell you is how many of those denials were erroneous, meaning a law abiding American was denied their Constitutional right due to an error in the database. As with any database, it is only as good as the information it contains. Repeatedly, I assist people who were denied the purchase of a firearm due to incorrect information. All it takes is a simple keystroke error and your rights are infringed until the database is updated.

If the government cannot create a database that accurately records the criminal records of American citizens, then how can it be trusted to know whether people coming into the United States can be trusted when, by the FBI Director’s own admission, there is no database to which the refugees can be compared?

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Posted in News

Cord Byrd Represents NRA at Debate on Guns

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Cord Byrd represented the NRA and the Second Amendment at a forum held on the campus of his alma mater, the University of North Florida on Monday night.

From the above news story:

“It’s a conversation that’s going to happen throughout the presidential campaign. And my goal is to have a civil conversation,” NRA member Cord Byrd said.

Byrd is a local attorney, representing the National Rifle Association and he’s pushing for things like allowing guns on college campuses, saying that would prevent the types of mass shootings that have been seen in recent years.

“With every one of these shootings, it takes place on a gun free zone. So one of the laws I think we need to change is to get rid of it. We need to stop advertising to the criminals where the unarmed targets are,” Byrd said.

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Posted in Constitutional Law, News

Ban Gun Free Zones

The President says it’s time to politicize the latest criminal act committed by an insane person, so I will play along. The President calls for more laws restricting the rights of law abiding citizens while saying nothing about one change in the law that could actually help prevent or limit the scope of these crimes, ending gun free zones.

Not including the attack yesterday in Oregon, here is a list of mass murder committed in gun free zones over the last eight years resulting in the loss of 105 lives and the wounding of 150 others: Lafayette Grand Theater (July 23)
Chattanooga (July 16),
Fort Hood (April 2, 2014),
DC Navy Yard (September 16, 2013),
Sandy Hook Elementary (December 14, 2012),
Aurora movie theater (July 12, 2012),
Fort Hood (November 5, 2009),
and Virginia Tech (April 16, 2007)

In contrast, here is a list of people and things we protect with guns: the President, Congressman, Governors, judges, celebrities, athletes, jewelry stores, banks, office buildings, etc.
The one group of people we don’t defend with guns, the most precious asset we have, are our children in their schools. When as a nation will we demand an end to the insanity we call gun free zones?

What the advocates of gun free zones will never tell you is that their real end game is repeal of the Second Amendment and confiscation of all guns. In fact, in the Sun Sentinel newspaper, a pretend journalist calls for just that, repeal of the Second Amendment. But let’s engage in this thought experiment, what if tomorrow all legally owned guns in America were gone? Would the gun crimes end? No. Here’s how we know this. The drug war has been going on for more than forty years and yet drugs flowing across our borders are as high as ever. The flood of illegal aliens pouring into the county cannot be stopped. Yet somehow if we just banned guns, all violence would end. This is insane. Banning guns would only create a black market for firearms, a nation where only the criminals and government would have guns, the people left defenseless and true liberty a distant memory.

And what about the liberal utopias of Chicago, Baltimore and St. Louis? These entire cities are in essence gun free zones, but thirteen dead and many more wounded are just a typical weekend.
The world is on fire and it is fifty million Americans who exercise their right to bear arms and are willing to defend liberty that keep our nation and thus the world from descending into total anarchy and chaos.

There are two major forces opposing the complete surrender to progressive socialism, Christianity and the right to keep and bear arms. If the left succeeds in finally destroying both, then the experiment in liberty and freedom we call America will be over.

Since the President never lets a good crisis go to waste, neither should we. It is time to end mass murder empowerment zones a.k.a. gun free zones.

Posted in News

Shooting Straight on Firearms Law

While the politics and the social impact of guns frequently make headlines, the practice of firearms law rarely receives the same level of attention. For those concerned about the preservation of the Second Amendment and the safe and legal use of guns, however, the merry band of firearms attorneys who toil in relative anonymity see their impact far outweigh their numbers.

As a lifelong hunter and shooting sports enthusiast the seeds of my practice were planted in law school. The Second Amendment received nary a mention in most constitutional law classes in the mid 90’s. The predominant legal theory at the time being that the Second Amendment was a collective, not an individual right, a vestigial tail of our agrarian past.

Fortunately for the Constitution and the People the Supreme Court clarified this ambiguity holding that the Second Amendment is an individual right just as are the other liberties guaranteed in the Bill of Rights. There was also some debate about the Clinton assault weapons ban, but other than that most students seemed not to give it much thought.

Upon graduation from law school, I began to research how I could turn my passion for the Second Amendment and interest in firearms into a profitable and rewarding legal practice. With a little research I discovered a network of attorneys throughout the country who shared my interest in firearms and the law. I was excited to learn that the area of firearms law existed beyond the scholarly world of law review articles and constitutional law seminars.
I knew that laws regarding firearms were an ancillary part of many practices but my challenge was to make it my primary focus. Fortunately, Florida leads the nation in the recognition and expansion of firearms law protections and laws that allow citizens to enforce those rights in court. Beyond the obvious area of criminal law, firearms law also touches numerous other practice disciplines, such as, property rights, employment, family law, import-export, zoning, intellectual property, civil rights, forfeiture, administrative, regulatory, mental health and wills and trusts, just to name a few.

The types of cases born of these areas are diverse, from restoration of gun rights at the administrative level to state and federal court cases defending law-abiding citizens exercising their right to keep and bear arms to federal firearms licensees being sued by anti-gun groups as a back-door strategy for gun control.
Given the passion and potential for controversy regarding guns, I also see government officials and law enforcement officers who illegally, or at the very least incorrectly, confiscate guns then refuse to return them to their rightful owners without a court order. In most instances, legally speaking, a court order is not required; however, because too many elected officials are afraid of any controversy, they try to punt the issue to the courts.

This necessitates the gun owner incurring legal expenses that in most instances outweigh the value of the property. The law enforcement officials know that most individuals will just forfeit the weapon. The agency can then add these illegally forfeited guns to their crime statistics proving that they are “getting guns off the streets.”
Another common case relates to Florida’s preemption law. This law gives real teeth to individuals looking to challenge local governments or law enforcement agencies that are hostile to gun owners. The law provides that the State has occupied the field in all matters related to guns, therefore, local governments, municipalities and government agencies, such as Sheriff’s Offices, cannot have their own laws, rules or policies contrary to the State’s.

One of the pitfalls for many lawyers not familiar with firearms law is the interplay between state and federal laws. Because most practitioners do not have an emphasis on firearms, I counsel many people who have received bad legal advice thus unnecessarily forfeiting their right to firearms ownership or exposing themselves to severe criminal penalties. I recently had a long practicing criminal defense attorney tell me he was shocked to learn that the advice he was giving clients, although valid under Florida law, was not under the federal court’s interpretation of Florida law thus exposing his clients to prosecution as felons in possession.
Many within the firearms community believed that when the Supreme Court decided the Heller and McDonald cases that the debate over guns and the Second Amendment was over. Unfortunately, it was only the beginning with the scope of the practice only increasing since those decisions were rendered by the Court. Correctly, the government is now focusing on the problem of mental health and firearms.

In almost every mass shooting we find that the criminal was known to have mental health issues prior to the tragedy. The Federal government will now supply funding to the states to put more mental health records into NICS (National Instant Criminal Background Check System). With increased records however comes more mistakes with people who should not have their rights taken away from them. The problem is a significant one for our veterans, many of whom will not seek necessary treatment from the Veterans Administration for fear of losing their gun rights. It is up to us, the firearms law practitioners, to help strike the right balance between protecting society and individual liberties.

Firearms law is a niche practice, but with the ever increasing specialization of the law, one that is truly needed. In addition to assisting individual clients, I also consult with other attorneys on firearms specific issues relating to cases where firearms are not the primary issue as well as consult with firearms related businesses to stay in compliance with federal regulations. You do not have to be a firearms enthusiast to recognize that firearms and the law related to them are part of the fabric of society and that we can make the use and ownership of firearms safer by providing good information to law abiding citizens.

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Posted in Legal, News

Miss America Contestant Nails Gun Question

At the 2015 Miss America pageant on Sunday, Miss South Carolina Daja Dial was asked the following question:

“America loves our Second Amendment, but gun violence continues to be a tragic problem. Do you support a ban on military-style assault weapons?”

Here is her perfect response:

“I don’t,” she replied. “If we teach people the proper way to use guns, then we will reduce the risk of having gun-related accidents. It starts with education.”

Posted in Constitutional Law, Legal, News, Video

Cord Byrd on local news regarding concealed weapons permits

IMG_5346Florida is expanding the methods in which law abiding Floridians can apply for or renew concealed weapons permits. Cord is interviewed about this topic and the recent shooting of the reporter in Virginia below:

“Firearms Law Attorney Cord Byrd is one of the proponents of that constitutional right [the Second Amendment] and points to Agriculture Commissioner Adam Putnam’s new program, partnering with tax collectors around the state to expand concealed weapons licensing services, calling it a good move.”

‘As with every tragedy our prayers are with the family. But in this situation last week with this reporter, there’s not a gun law that could be written that would have prevented that tragedy,’
Byrd said.”

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Posted in Constitutional Law, Legal, News, Video

Hunters vs. PETA – Hunters Contribute More

It is said that truth is treason in the empire of lies. The recent uproar over the hunting of Cecil the lion proves that the animal kingdom, or empire,  is no exception.  While the media portrays hunters as blood thirsty trophy seekers, the truth is that hunters spend more money to preserve and conserve animal habitats and species than does PETA, and it is not even close. According to PETA’s 2014 financial report its gross revenue was  $51,933,001.00 (PETA 2014 Financial Report).

In contrast, the US Fish and Wildlife Service collects nearly $200 million in hunters’ federal excise taxes  that are then distributed to State agencies to support wildlife management programs, the purchase of lands open to hunters, and hunter education and safety classes. Proceeds from the Federal Duck Stamp, a required purchase for migratory waterfowl hunters, have purchased more than 5 million acres of land that support waterfowl and many other wildlife species.

The $200 million number does not include the revenue collected by the states for hunting and fishing permits as well as other taxes and charitable contributions  paid by hunters to support wildlife conservation and habitat.

In Africa, the fees paid by hunters to harvest big game can run into the tens of thousands of dollars to hunt one animal. That money goes to support the local economies and employs the people in those communities. When large game is harvested  the majority of the meat goes to the local people and is one of the main sources of protein in their diet.

If rules were broken in the hunting of Cecil then let the offending parties be punished in accordance with the law. But the use of Cecil to further demonize and attack law abiding hunters and as an excuse to make hunting more restrictive cannot go without a strong and vocal defense from the hunting and fishing community. It is just a simple statement of fact that hunters spend more and contribute more to the preservation and conservation of wildlife and land than do the self proclaimed animal-rights activists.

Hunting and fishing are part of our heritage and traditions and make no mistake that those who seek to limit our rights and liberties do so with the purpose of fundamentally transforming America.

The vast majority of  hunters and fisherman are  “good stewards” of nature’s bounty and make a big contribution towards ensuring the future of many species of wildlife and the  habitat in which they live and flourish.

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Illegal Gun Registrations in Florida

Florida law, specifically F.S.§790.335, prohibits any state governmental agency or local government, special district, or other political subdivision or official, agent, or employee of such state or other governmental entity or any other person, public or private, from knowingly and willfully keeping or causing to be kept any list, record, or registry of privately owned firearms or any list, record, or registry of the owners of those firearms.

The Florida Legislature finds that a “list, record, or registry of legally owned firearms or law-abiding firearm owners is not a law enforcement tool and can become an instrument for profiling, harassing, or abusing law-abiding citizens based on their choice to own a firearm and exercise their Second Amendment right to keep and bear arms as guaranteed under the United States Constitution. Further, such a list, record, or registry has the potential to fall into the wrong hands and become a shopping list for thieves.

Unfortunately,even when the law is clear and unambiguous, violations still occur. A recent case has come to my attention that violates the letter and spirit of the law as well as the express findings of the legislature. A gun owner was involved in a car accident. Before being transported to the hospital and being a responsible gun owner the victim informed the investigating officer that there were two firearms in the vehicle. Concerned that the guns would be out of his custody and control while he was at the hospital receiving treatment, the victim asked the law enforcement officer to hold the firearms for safekeeping. The victim did what any reasonable and responsible gun owner should do. What happened next should give us all cause for concern.

The law enforcement officer proceeded to prepare an incident report, listing in detail the make, model and calibers of the firearms as well as the precise number of rounds in each. Please keep in mind that the incident report also contains the name, address, date of birth and vehicle tag number of the victim. Incident reports of this nature are public record, giving inquiring minds everything they need to know about this person and their firearms. It is also important to note that the victim committed no crime and was not under an investigation for committing a crime, he was merely involved in a car accident, a foreseeable situation for any gun owner that uses a motor vehicle for transportation.

Making matters even worse, the law enforcement officer editorialized in the report that he found the victim’s possession of two guns unusual and further stated that the victim “claimed he needed [the guns] for self-defense. If this ever happened to me and the guys I hunt with we would be in big trouble as we usually have enough arms to invade a small country with us and certainly more than two.

The law enforcement agency in question refuses to redact the information despite numerous requests by the responsible gun owner who was merely exercising a constitutional right. The officer could have stated in the report that guns were taken into possession and then given the victim a property receipt identifying the specific guns but not making them available to the public.

What concerns me even more than the creation of a gun list is the officer’s attitude that having guns in the vehicle is “unusual” and that the victim “claimed” he needed them for self defense. The Florida Constitution, in the grant of the right to keep and bear arms, states that the people have a right to have weapons in defense of themselves, so why would having guns be unusual and why would the claim that they are need for self defense be suspicious? Either the officer has a personal bias against gun owners or is being trained to have a bias, neither of which is acceptable.

The price of liberty is eternal vigilance and we the people must guard jealously our rights and liberties. While this story may seem like a small or trivial matter in the grand scheme of things I can assure you that it is not and it is indicative of the challenges facing law abiding gun owners in the exercise of their God given rights. If this or something similar has happened to you please contact me.

Posted in News