The Goodman DUI Decision Ordering New Trial

Below is a link to the Palm Beach County Circuit Court decision by Judge Colbath granting a new trial in the Goodman case. This was based on juror Dennis DeMartin concealing during jury selection that his ex-wife had a DUI conviction.
Goodman Order Granting New Trial – PDF

Based on our read, it seems like Judge Colbath had a difficult decision to make, and he made the correct one. Here are some snippets of the decision.

First the caption:

In the next two we see that DeMartin did have issues with his ex-wife’s DUI arrest and that he did not disclose it.

And last, the judge grants the motion for a new trial:

Concealed Carry In Florida School Parking Lots

For holders of a Florida concealed weapon license, a big question comes up frequently: Where can I carry? And perhaps the bigger question is: Where can’t I carry? This comes up a lot when it comes to school parking lots, because many parents in Florida drop off and pick up their kids from school.

It is my opinion as an attorney that licensed parents can legally carry a concealed weapon in the car during the pickup and drop-off. It is not legal, however, to carry a concealed weapon into a school building and not even to carry one outside the vehicle in the school parking lot. If you think you might get out of the vehicle you should have a secure case under your seat where you can store your firearm before you get out of the car.

Warning: This is my general legal opinion as of April 2013. The law may change. Court decisions may change the interpretation of the law. And your specific circumstances may not fit my analysis. Most important, the police, prosecutors and judges in your area may not agree with my analysis. For a thorough legal opinion you should sit down with an attorney in your community to go over your situation.

Conceal carry licenses (also known as concealed carry permits, CCW or CCL) are issued pursuant to Florida Law Section 790.06, License to carry concealed weapon or firearm. Most of the statute goes over the process that’s involved in issuing licenses. But the “where you can’t carry” is covered in subsection 12. The provisions relevant to schools are:

(a) A license issued under this section does not authorize any person to openly carry a handgun or carry a concealed weapon or firearm into:
7. Any meeting of the governing body of a county, public school district, municipality, or special district;
9. Any school, college, or professional athletic event not related to firearms;
10. Any elementary or secondary school facility or administration building;
13. Any college or university facility unless the licensee is a registered student, employee, or faculty member of such college or university and the weapon is a stun gun or nonlethal electric weapon or device designed solely for defensive purposes and the weapon does not fire a dart or projectile;
15. Any place where the carrying of firearms is prohibited by federal law.

(b) A person licensed under this section shall not be prohibited from carrying or storing a firearm in a vehicle for lawful purposes.

So first of all, #7 applies to meetings of a public school district. While these would typically not be held in a school, it’s close enough that it’s worth noting.

#9 refers to school events. So if you’re going to a school event you should not carry a concealed weapon, even if the event is not on school property. This language is a little trickier than it seems because it’s not clear if it’s referring only to school athletic events, or any school event. To be safe, we’d suggest assuming that all school events are off-limits, unless of course it’s related to firearms as mentioned.

#10 is the big one – it prohibits concealed carry in any “school facility or administration building.” So what’s included in the word “facility”? And more particularly for the purposes of this discussion, is a parking lot included in the term facility? While we could get into a detailed analysis of this, subsection (b) seems to make this unnecessary as discussed below.

#13 covers college and university facilities. This again leaves the parking lot question.

And #15 mentions federal law, which I will address further down below.

The good news for Florida CCW holders is that subsection (b) expressly protects “carrying or storing a firearm in a vehicle for lawful purposes.” So as far as 790.06(12) is concerned you should be okay.

That brings us to the awkward language of Section 790.25(5):

(5) POSSESSION IN PRIVATE CONVEYANCE.— … it is lawful … for a person 18 years of age or older to possess a concealed firearm or other weapon for self-defense or other lawful purpose within the interior of a private conveyance, without a license, if the firearm or other weapon is securely encased or is otherwise not readily accessible for immediate use. Nothing herein contained prohibits the carrying of a legal firearm other than a handgun anywhere in a private conveyance when such firearm is being carried for a lawful use. Nothing herein contained shall be construed to authorize the carrying of a concealed firearm or other weapon on the person. This subsection shall be liberally construed in favor of the lawful use, ownership, and possession of firearms and other weapons, including lawful self-defense as provided in s. 776.012.

Here we can read “conveyance” to mean vehicle, as in your car, truck or SUV. So you can possess a concealed firearm, even without a license, as long as it is “securely encased or … not readily accessible.” The quirkiest bits of language are the two sentences that each start with “Nothing herein contained …”.

The first of these sentences says that this particular statute does not prohibit firearms that aren’t handguns in a vehicle. That means this section doesn’t ban carrying a shotgun or rifle openly in your car, though it doesn’t mean it’s not prohibited by some other statute. Then the second sentence says that the statute doesn’t authorize carrying concealed on the person. But that doesn’t mean it’s not authorized by some other statute, such as 790.06(12)(b) as discussed above.

And that last sentence is a doozy. It’s amazing that the Republican-dominated Florida legislature would ever call for anything to be “liberally construed,” but here it is.

Subsection 4 of the same statute is similar:

(4) CONSTRUCTION.—This act shall be liberally construed to carry out the declaration of policy herein and in favor of the constitutional right to keep and bear arms for lawful purposes. This act is supplemental and additional to existing rights to bear arms now guaranteed by law and decisions of the courts of Florida, and nothing herein shall impair or diminish any of such rights. This act shall supersede any law, ordinance, or regulation in conflict herewith.

This makes it quite clear that 790.25 does not take away any rights you might have under another statute.

But wait, there’s more. Section 790.115(2)(a) says:

A person shall not possess any firearm … on the property of any school …; however, a person may carry a firearm:

–3. In a vehicle pursuant to s. 790.25(5); except that school districts may adopt written and published policies that waive the exception in this subparagraph for purposes of student and campus parking privileges.

So again there’s a law against firearms at schools, and here it’s “on the property” which clearly includes a parking lot. But the law specifically exempts vehicles, but then allows school districts to make an exception “for purposes of student and campus parking privileges.”

Palm Beach County School District, for example, has invoked this exception in its policy, Section 2.383(5):

Prohibition in School Parking. For the purposes of student and school campus parking, the Board waives the exception in Sec. 790.115(2)(a)(3), Fla. Stat. Thus, no person shall possess a firearm in any vehicle, locked or unlocked, parked on any school property …

This makes it clear that people cannot possess firearms in vehicles if “parked on school property.” This exception directly conflicts with 790.06(12)(b) for those licensed to carry concealed weapons. The only sensible way of resolving this conflict is that licensed holders can carry and store firearms if parked on school property, but unlicensed owners cannot.

And what counts as parked? Section 316.003(27) defines parking as:

PARK OR PARKING: The standing of a vehicle, whether occupied or not, otherwise than temporarily for the purpose of and while actually engaged in loading or unloading merchandise or passengers as may be permitted by law under this chapter.

And while we’re at it (49) defines standing:

STAND OR STANDING.—The halting of a vehicle, whether occupied or not, otherwise than temporarily, for the purpose of, and while actually engaged in, receiving or discharging passengers, as may be permitted by law under this chapter.

This is one of those moments when reading statutes gets infuriating. Apparently the difference between parking and standing has to do with whether you’re loading or unloading merchandise. I thought standing was temporary and parking was not temporary, but this is what you get when elected officials define things. Also whether your car is running or not appears irrelevant.

Anyway, if you’re waiting in the car line to either drop off or pick up your kid at school, that is pretty clearly both temporary and for the purpose of loading/unloading passengers. So again it’s okay to possess a firearm in your vehicle if you’re on the car line.

Getting back to Section 790.06(12)(b), it says you can carry or store a firearm in your vehicle. The word “carry” does not indicate whether it’s referring to open carry (where the firearm is visible to others) or concealed carry. It is vague.

That vagueness and the otherwise confusing nature of all these laws bring us to a key principle in American law – the Void for Vagueness doctrine. If you were to be prosecuted for carrying a concealed pistol in a car in the school drop-off or pick-up line, you would have an excellent argument that the law is unclear whether what you were doing was prohibited. As the Supreme Court put it in 1926:

[T]he terms of a penal statute […] must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties … and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.

There is one last concern – whether concealed carry of a pistol is prohibited by federal law. Section 790.06(12)(a)(15) mentions this. The federal Gun Free School Zones Act of 1990 claims to prohibit guns in school zones. There are a couple reasons not to worry about this one. For one, the law was held unconstitutional by US v. Lopez.

The second point is even stronger for gun owners. The federal law makes an exception for those licensed by the state, so if you have a Florida CCW license, you’re protected from this federal statute.

(A) It shall be unlawful for any individual knowingly to possess a firearm … [in] a school zone.

(B) Subparagraph (A) does not apply to the possession of a firearm—

(ii) if the individual possessing the firearm is licensed to do so by the State in which the school zone is located … and the … the State … verif[ies] that the individual is qualified under law to receive the license;

So, under the law as it stands now in Florida as of April of 2013, it is my legal opinion that Florida gun owners who are licensed by the state to carry a concealed weapon may indeed carry concealed in their car, or store a firearm in the car, while picking up or dropping off their kids in the school parking lot. You should NOT get out of the car with the firearm on you. And if you are parking and going into the school, you can leave your firearm securely stored in the vehicle, but this is a closer question and you are at greater risk if you do so. If you know you are going to be getting out of the car, it is safer from a legal perspective that you not bring firearms with you at all.

Florida v. Harris: Put Sparky on the Stand

Our fair state made legal news today with the US Supreme Court’s decision in Florida v. Harris (pdf).

Harris addresses the question of when, in the words of Justice Kagan, the “alert” of a drug-detection dog during a traffic stop provides probable cause to search a vehicle.

The Florida Supreme Court had ruled, in Harris v. Florida (2011):

[W]e hold that evidence that the dog has been trained and certified to detect narcotics, standing alone, is not sufficient to establish the dog‘s reliability for purposes of determining probable cause— especially since training and certification in this state are not standardized and thus each training and certification program may differ with no meaningful way to assess them.

Accordingly, we conclude that to meet its burden of establishing that the officer had a reasonable basis for believing the dog to be reliable in order to establish probable cause, the State must present the training and certification records, an explanation of the meaning of the particular training and certification of that dog, field performance records, and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog‘s reliability in being able to detect the presence of illegal substances within the vehicle.

Overturning this ruling, the US Supreme Court ruled yesterday that this standard was too strict:

[T]he decision below treats records of a dog’s field performance as the gold standard in evidence, when in most cases they have relatively limited import. Errors may abound in such records. If a dog on patrol fails to alert to a car containing drugs, the mistake usually will go undetected because the officer will not initiate a search. Field data thus may not capture a dog’s false negatives. Conversely (and more relevant here), if the dog alerts to a car in which the officer finds no narcotics, the dog may not have made a mistake at all. The dog may have detected substances that were too well hidden or present in quantities too small for the officer to locate. Or the dog may have smelled the residual odor of drugs previously in the vehicle or on the driver’s person.

In other words, it’s too difficult for the government to prove that the dog is actually reliable because they make too many mistakes. SCOTUS prefers a “flexible, common-sense standard” of probable cause. In other words, one that offers little if any assurance that the search is appropriate.

I had the pleasure of handling a probable cause hearing in a dog sniff case several years ago. The marijuana was in vacuum-sealed packages which were inside sealed zip lock bags, which were themselves inside a closed garbage bag. And all of this was in the trunk of a Mercedes for about 10 minutes before the vehicle was stopped. Somehow the odor of marijuana managed to get through all of that in 10 minutes. Or did it? The dog alerted to the front passenger door of the car, and not to the trunk. That’s not even close to where the drugs were found.

This points to the larger problem – it’s not the dog, but rather the police officer handling it. What assurances are there that the officer is not lying, or otherwise manipulating the dog to get the result he wants? The Court offers no such safeguards, such as the field records required by the Florida Supreme Court. What regular people don’t know is that police lie in court, and they lie a lot. Some complain about a thin blue line where police officers protect each other. The line is not so thin. Prosecutors and judges also protect lying cops. Even though the problem of testilying is well-known, it’s extremely rare to read a judicial decision where a judge rules for the defense because the police testimony was not credible. And now today we can see yet again that the blue line is wide enough to include the US Supreme Court. Thanks SCOTUS.

Personally I prefer a more entertaining approach. The police should be required to put Sparky on the witness stand. I don’t have demanding standards – we ask Sparky yes/no questions and he answers with one woof for yes and two woofs for no.