Gun Crimes

December 22, 2009

Florida Search and Seizure: Mere Possession of a Weapon is Not Grounds to Search

Unreasonable searches and seizures are unconstitutional. If a police officer violates this prohibition against unlawful searches and seizures, any evidence that was found due to such violation can be suppressed. Therefore, the evidence cannot be introduced at trial.

In Florida, there are three types of police encounters:

a consensual encounter in which a person is free to leave at any time;
a investigatory stop (Terry Stop) in which the person is not free to leave, but the police officer may only pat the subject down and the officer must have a well-founded suspicion of criminal activity; and
an arrest that is supported by probable cause to believe that a crime has occurred (or is being committed).

Recently, the Florida Fourth District Court of Appeals addressed this issue. In Regalado v. State, an anonymous tipster informed police that Mr. Regalado was in possession of a firearm. An officer stopped Mr. Regalado and patted him down. As a result, he founded a gun on Mr. Regalado. Mr. Regalado filed a Motion to Suppress the weapon due to an unlawful search and seizure. The trial denied Mr. Regalado’s motion. The Florida appellate court reversed this decision and granted his motion. The court ruled that:

November 3, 2009

Possession of a Firearm by a Convicted Felon: Can I Be Charged in Jacksonville if My Spouse Owns the Gun?

by David M. Goldman

According to Florida Statute Section 790.23, a person that has previously been convicted of a felony cannot possess a firearm. Under Section Section 10.15 of the Florida Standard Jury Instructions, the state must prove that the convicted felon had in his care, custody, possession, or control a firearm, electric weapon/device, or ammunition.

Whether or not a convicted felon can be charged with Jacksonville Possession of a Firearm by a convicted felon that his or her spouse owns will depend on the definitions of “care, custody, possession or control.” ” ‘Care’ and ‘custody’ mean immediate charge and control exercised by a person over the named object.” The term “possession” is defined as the ability “to have personal charge of or exercise the right of ownership, management, or control over an object.”

Under Florida Law, a Jacksonville convicted felon can actually or constructively possess a firearm. Actual possession occurs when the firearm is on the convicted felon’s person or so close that it is readily within his or her reach. Just because the firearm is very close to the convicted felon, there is no actual possession of the firearm if he or she is not in a position to exercise control over it. A convicted felon is in constructive possession if the firearm is located in a place that the felon has concealed the firearm or a place that the felon has control over.

October 22, 2009

Man Hunt, a Game Played by Jacksonville Children, Violates Florida Gun Laws

by David M. Goldman

Today, I learned about a game that some children play in the Jacksonville, Florida area. It is called “Man Hunt.” It appears to be a spin off of hide-n-seek and tag, but firearms are involved. According to an article entitled “How to Play Man Hunt,” the players set up a large perimeter. All players, except the hunter or hunters, are given a time period to hide. Then, the hunt begins. While this article, does not reference the use of firearms or weapons in any way, it appears that children have taken the game a step further and incorporated air guns and/or BB guns.

Not only is this dangerous to the children involved and bystanders, it can result in civil and criminal liability for parents. As for civil liability, a parent that allows a child to use an air gun or BB gun in a negligent fashion or without supervision may be sued for negligence and be held liable for any damages to person or property. As for criminal charges, Florida Statute Section 790.22(1) states:

“the use for any purpose whatsoever of BB guns, air or gas-operated guns, or electric weapons or devices, by any minor under the age of 16 years is prohibited unless such use is under the supervision and in the presence of an adult who is acting with the consent of the minor’s parent.”

May 4, 2009

Jacksonville Possession of a Firearm by a Convicted Felon: What About Antique Firearms?

by David M. Goldman

Can a convicted felon possess an antique firearm in Jacksonville, Florida? It appears that the Florida Supreme Court has not directly answered this question. According to Florida Statute Section 790.23, a convicted felon is prohibited from possessing a firearm. This crime is known as Jacksonville Possession of a Firearm by a Convicted Felon. Florida Statute Section 790.001(6) defines “firearm” and specifically exempts antique firearms, unless it is used in the commission of a crime. From the plain language of these Florida laws, it would seem obvious that a Jacksonville convicted felon may possess an antique firearm since it is not prohibited by the statute. However, Florida case law does not support this rationale.

In Williams v. State, 492 So. 2d 1051 (Fla. 1986), the Florida Supreme Court ruled that Section 790.23 could not be construed to allow a convicted felon to possess a concealed firearm, even an antique firearm. Florida’s 5th District Court of Appeals addressed this issue in Bostic v. State, 902 So. 2d 225 (Fla. 5th DCA 2005). In Bostic, the court stated that “the firearm a convicted felon is prohibited from possessing excludes an antique firearm.” However, the court did not grant the defendant’s motion to dismiss, because the trial court ruled that the firearm in question was not an antique.

After reading these Florida cases, it appears that the law is unsettled on the issue of whether a convicted felon can possess an antique firearm in Jacksonville. I agree with Judge Sharpe’s dissent in Bostic. He stated that the law either (1) clearly permits possession of the antique firearm or (2) is unconstitutionally vague.

February 16, 2009

Jacksonville Gun Crimes and Liability

by David M. Goldman

Imagine someone steals your gun from your Jacksonville residence, and he shoots someone with it. Are you liable for this Jacksonville gun crime? Maybe. The answer depends on the facts of your case. For example, under Florida Statute Section 790.174, Jacksonville residents must store their guns in a securely locked box or other secure location if they know or should know that a minor is likely to access the gun. If this Florida statute is violated and a minor obtains possession of the gun, the Jacksonville resident can be charged with a second-degree misdemeanor.

Jacksonville gun owners should be aware that they can be liable for negligent entrustment of a gun. As a Jacksonville gun owner, you have a legal responsibility to keep your gun safe and secure. Jacksonville gun owners must be cautious of allowing other people to borrow the gun or have access to the gun. In some cases, a Jacksonville gun owner may sued for negligence if someone takes the gun and injures another person with it, if the Jacksonville gun owner was negligent in storing the gun or allowing the gun to be available to another person.

To learn more about Jacksonville gun crimes and the liability involved with owning a gun in Jacksonville Florida, contact a Jacksonville Gun Lawyer or visit www.jacksonvillelawyer.pro.

December 3, 2008

NFL Player Charged with Carrying a Firearm Illegally

by David M. Goldman

Plaxico Burress, New York Giants’ receiver, accidently shot himself in the leg last Friday night while at a nightclub. The NFL player has been charged in New York with criminal possession of a weapon. New York has strict gun laws that require a minimum mandatory prison sentence.

Similarly, Florida laws prohibit criminal carrying of weapons. Under Florida Statute Section 790.01, Carrying a Concealed Firearm occurs when a defendant knowingly carries the firearm and the firearm is concealed from another person’s ordinary sight. Florida Carrying a Concealed Firearm is a third degree felony. As such it is punishable by up to 5 years in Florida State Prison.

Like New York, Jacksonville, Florida takes gun crimes very seriously. Often, Jacksonville prosecutors request incarceration for a defendant charged with Carrying a Concealed Firearm in Jacksonville Florida. However, in my experience, there are ways to avoid incarceration. Usually, a Jacksonville Carrying a Concealed Firearm Attorney will present mitigating evidence to the prosecutor. This evidence explains to the prosecutor why the defendant was carrying the firearm. Additionally, a Jacksonville Carrying a Concealed Firearm Lawyer needs to show that the defendant is not the type of person that commits crimes and is not a threat to the community. In essence, the most important thing is to demonstrate that the defendant deserves another chance.

November 11, 2008

San Marco Doctor Robbed In Jacksonville Florida

by David M. Goldman

On Sunday morning, two masked men robbed a doctor at gunpoint in Jacksonville, Florida. They forced their way into the doctor’s house seeking Oxycontin. However, the doctor did not have this medication, but they did steal $150 in cash.

Clearly, the men that committed will be subject to home-invasion, armed robbery charges in Jacksonville, Florida, but it does not end there. Florida enacted a law known as “10, 20, Life.” This law creates a minimum mandatory sentence for criminal defendants that use a firearm in the commission of a crime. For example, the men that committed the robbery were in actual possession of a gun. As such, these criminal defendants will be subject to a minimum mandatory sentence of 10 years in the Florida State Prison.

A criminal defendant that is charged with any crime that involves a firearm should hire a Jacksonville Florida Gun Crime Attorney to protect the criminal defendant’s interests. The “10, 20, Life” Florida law is complicated. A Jacksonville Florida Criminal Defense Lawyer that understands the penalties associated with a gun crime will be able to represent the criminal defendant to the fullest.

November 10, 2008

Jacksonville Gun Crimes Equal Hard Time

by David M. Goldman

The Jacksonville Sheriff’s Office has in effect an initiative known as “Operation Safe Streets.” Due to Jacksonville’s soaring murder rate, this initiative focuses on gun crimes. The idea behind Operation Safe Streets is that a criminal defendant charged with a gun crime will serve time in jail. The goal of the Jacksonville Sheriff’s Office is to get guns off the street, stop people from carrying guns illegally, and send a message to the community to deter gun crimes.

While there is a need for gun crime deterrence in Jacksonville, a bright-line rule that a “Gun Crime = Hard Time” is not the answer. As with everything in life, there are exceptions to the rule. In some cases, jail time for someone charged with a gun crime may not be the solution. For example, imagine a man that recently began carrying a concealed firearm in his vehicle for protection. He has no criminal record and is in the process of obtaining his permit, but does not have it yet. Technically, he may be charged with a felony and sent to jail or prison, but is this fair? Each case should be evaluated on a case by case basis. A rule that everyone charged with a gun crime should go to jail, period, does not make sense.

A Jacksonville Florida Gun Crime Attorney can evaluate the case and show the prosecutor why a person charged with a gun crime is different from other criminal defendants. A Jacksonville Florida Gun Crime Lawyer knows that not every person arrested for a gun crime deserves to go to prison or jail.