Dishonorable Discharge and Firearms Ownership

In the wake of the Texas shooting there seems to be confusion about dishonorable discharge from the military and firearms possession. I have been contacted by several people with prior military service about their rights. One of the questions asked on Form 4473 (the federal firearms purchase form) is whether or not the purchaser was dishonorably discharged from the armed services.
There are numerous classifications of discharge, some of the common ones are honorable, general, less than honorable, bad conduct discharge (BCD) and dishonorable.

Only a dishonorable discharge will prevent someone from being able to purchase, own or possess a firearm. ATF states that the federal law regarding dishonorable discharges does not include a BCD.

Please see:

ATF, look at pages 16-18 and 24 here:

https://www.atf.gov/file/84311/download

And here on page 4:

https://www.atf.gov/file/58676/download

Florida courts often look to federal decisions and agency interpretations to interpret similar statutes. The Florida Division of Licensing Division and federal law use the terminology, dishonorable discharge, and should interpret the meaning the same.

If you served in the military and were discharged somewhere between honorable and dishonorable and are having difficulty exercising your rights. I have assisted other veterans with this issue and can help you. Please contact me today.

Posted in News

Florida’s Breach of the Peace Statute is Unconstitutional

Florida’s Breach of the Peace (BOP) statute is unconstitutional and should be repealed by the Legislature. The BOP is found in Florida Statute §877.03 which states:
“Whoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engages in brawling or fighting, or engages in such conduct as to constitute a breach of the peace or disorderly conduct, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.”

In 1973 a Florida Supreme Court justice said the BOP statute is unconstitutional for being too vague and over-broad and should be repealed by the legislature. Unfortunately, this was said in a concurring opinion and was beyond the holding of the case. The fact that the BOP statute is unconstitutional is a concern for all citizens, but for gun owners in particular this statute is especially problematic.

Florida Statute §933.14(3) states in relevant part:
“No pistol or firearm taken by any officer with a search warrant or without a search warrant upon a view by the officer of a breach of the peace shall be returned except pursuant to an order of a trial court judge.”

Unfortunately, many law enforcement agencies around Florida use the BOP statute to seize weapons and firearms whenever they are called to a scene, even when no crime has been committed. Some Sheriffs and Police Chiefs use this illegal policy to claim that they are “getting guns off the street” and to prove that they are “tough on illegal guns.” They know that most people will not go to court to retrieve the firearm as often it is more expensive to hire an attorney and go to court than to just purchase a new firearm.

Florida Gun Lawyer is looking for a case to challenge this unconstitutional statute, if you or someone you know has been arrested or charged for a breach of the peace call me immediately. It’s beyond time to get this bad law off the books.

Posted in Constitutional Law, Legal

Medical Marijuana and Guns Don’t Mix in Florida

In 2016, Florida voters changed the state constitution making medical marijuana legal. Following other states, Florida will require patients to obtain a medical marijuana card from their doctor.
Although medical cannabis is now legal in Florida, the change does not alter federal law which classifies marijuana as a Schedule 1 drug, thus making its users prohibited from owning, possessing or using firearms.

Florida Gun Lawyer is receiving questions from concerned gun owners as to how their rights may be impacted. Until a Florida court or federal court covering our jurisdiction rules on the matter, all we can do is look to what other courts have said on the issue.

In 2016, the 9th U.S. Circuit Court of Appeals, covering nine western states, held that you can’t buy a gun if you have a medical marijuana card. The appellate court agreed with guidelines from the ATF that firearms sellers should assume that medical marijuana card holders use the drug. The Form 4473, the federal form every purchaser of a firearm from an FFL must complete, specifically asks whether the purchaser is an unlawful user of or addicted to a controlled substance. Since marijuana is a controlled substance under federal law answering yes to this question will lead to a purchase denial. If you answer no, and have a state-issued medical marijuana card, then you run the risk of a perjury charge as well as being a prohibited person in possession of the firearm.

Here is the letter the ATF sent to all FFLs in 2011 when states first started legalizing medical marijuana. No further guidance has been issued since.

I anticipate that law-abiding yet unassuming individuals will get ensnared in the trap between state and federal law. An interesting point that proponents of medical cannabis make is the inconsistency between the use of medical pot and other addictive drugs that are prescribed by doctors such as opioids. Our nation is facing an opioid addiction crisis, yet as long as those drugs are prescribed by a doctor they do not prohibit firearms ownership. Is the distinction valid as more and more states approve the use of medical marijuana?

As often in politics, this debate creates strange bedfellows aligning the gun community with the pro medical pot community. Until we have guidance from a court in our jurisdiction (my hunch is that the 11th US Circuit will follow the logic of the 9th Circuit) gun owners should be VERY cautious before obtaining a Florida medical marijuana card.

Posted in Constitutional Law, Legal, News

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?

Posted in News Tagged with: , , , , ,

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.

Posted in Constitutional Law, News Tagged with: , , , , ,

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.

Posted in Legal, News Tagged with: , , , ,

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