Regalado v. State 2009

RetiredOC · Oct 23, 2011

This is brought up here and there throughout the forums, but I wanted to talk more about it.

(if you've never heard of this you can read about it here http://scholar.google.com/scholar_c...60411591&q=790.053&hl=en&as_sdt=4,10&as_vis=1)

I'm curious about how others feel about how they'd respond to being stopped by the police for carrying concealed but obviously carrying.
If stopped by a police officer for your obvious bulge from your OWB holster, will YOU comply with 790.06? Or will you inform the police officer of your 4th Amendment rights and how the District Court of Appeal of Florida held that stopping you solely based off of possession of a firearm violates the 4th?

790.06
(1)....The licensee must carry the license, together with valid identification, at all times in which the licensee is in actual possession of a concealed weapon or firearm and must display both the license and proper identification upon demand by a law enforcement officer. Violations of the provisions of this subsection shall constitute a noncriminal violation with a penalty of $25, payable to the clerk of the court.

Also, with the holdings in the majority opinion of the Regalado case I feel that with the new briefly display law a police officer could see for himself a gun briefly show its muzzle under your shirt line and not be able to stop you based off of that. Am I wrong here?

I think personally if I was with my family and didn't feel like dealing with any bull crap I would just show the license and let the cop know how he has done his part to shred the constitution, but if I was alone with time to kill I'd probably refuse.

------------------------------

On this note, last week a friend of mine told me he was out with another one of his armed guard friends. The friend has a valid CWL and was carrying in his duty holster, bulging under his shirt BIG TIME - yet still the firearm was removed the ordinary sight IAW 790.001 subsection (2). A police officer stopped them and demanded to see a CWL. The friend first refused. At this point the cop (who I am told was being a you know what) threatened them with arrest and threatened to confiscate the license. (I found this odd seeing as 790.06 considers failing to display a CWL upon demand by a LEO a noncriminal violation with a penalty of $25.) Out of fear of being arrested and possibly losing his job over what may come if it the friend caved in and provided his CWL.

Just wanted to share that situation with you to analyze. I know it's not a lot of detail, but I heard it second hand. I was called up soon after it happened because, amongst my friends, I'm known to live on these forums and know a little bit about FL laws regarding firearms.
------------------------------

My main reason for this thread is because I carry OWB a lot, when the wind blows my shirt my gun is visible (briefly displayed), and I wear certain shirts that let the muzzle become visible under my shirt line when I move different ways. I plan on exercising my rights as held in Regalado v. State if stopped by a LEO and I just want to make sure I'm in the right. A second, third, fourth set of eyes on my opinion would be great. If you see something in my way of thinking that is just way off, LET ME KNOW!

RetiredOC · Oct 23, 2011

am I reading case law right?

from my understanding everything above
"GROSS, C.J., concurs.

CIKLIN, J., dissents with opinion.

CIKLIN, J., dissenting."
is considered "holdings" in the "majority opinion" and is therefor considered the "law" regardless of how it contradicts 790.06. Right?

Rich7553 · Oct 23, 2011

Within the limits of my understanding of it, yes, you are correct.

But I'm more interested in what happened to your friend. Can you provide details? This is exactly the kind of thing Florida Carry needs in order to revive the open carry debate. P.M. me or e-mail me at rich@floridacarry.org.

Also, law enforcement has no authority to confiscate a license. Only DOACS can do that.

RetiredOC · Oct 23, 2011

Rich7553 said:
Within the limits of my understanding of it, yes, you are correct.

But I'm more interested in what happened to your friend. Can you provide details? This is exactly the kind of thing Florida Carry needs in order to revive the open carry debate. P.M. me or e-mail me at rich@floridacarry.org.

Well, it was really my friend's friend. But I will contact him and ask him to have his friend provide some details to the best of his memory. email will be sent as soon as I can get that.

ADulay · Oct 23, 2011

Schlitz said:
If stopped by a police officer for your obvious bulge from your OWB holster, will YOU comply with 790.06? Or will you inform the police officer of your 4th Amendment rights and how the District Court of Appeal of Florida held that stopping you solely based off of possession of a firearm violates the 4th?

OK, I know I'm going to get beat up for this reply, but what the heck, it's kind of a free country.

The police officer has just noticed your "bulge" and he's not a gay cop.

He is not stopping and asking you for ID because of the gun. He's asking you for ID because carrying a concealed weapon is illegal without the permit/license.

As a permit holder, if you have trouble "concealing" your weapon, you can probably expect to be asked about it in some situations.

Show the man your permit and move on! Simple, fast and no hassles.

Or, you could get into a pessing (sp) contest and go back and forth about it and escalate what should have been a 30 second encounter into a multi-officer extravaganza that nobody wants.

If your concealed weapon was, well, concealed in the first place, this wouldn't have happened so YOU, (not you personally), the person with the bulging Casull 454 in your European style Speedo swim trunks, can probably expect to be asked about the OBVIOUS CONCEALED GUN in your pants.

Or am I seeing this "problem" all wrong?

AD

ADulay · Oct 23, 2011

Schlitz said:
Also, with the holdings in the majority opinion of the Regalado case I feel that with the new briefly display law a police officer could see for himself a gun briefly show its muzzle under your shirt line and not be able to stop you based off of that. Am I wrong here?

Ooops, I forgot that one to comment on.

Yes, the "brief" display thing should NOT bring an officer running to ask about your gun.

However, once again, although you "flashed" it accidentally, which is not illegal by definition, he now KNOWS you have a gun and as you've gone back to concealing it, he MAY want to confirm that you do actually have a permit for that action.

Does the logic make sense?

AD

RetiredOC · Oct 23, 2011

I understand your point of view. In a situation when I don't have time to waste I may consider just showing the CWL, but I feel that I'm throwing my rights down the drain by doing this. I feel like I'm only aiding that officer in doing it to the next guy. The 4th Amendment is in the constitution, it's there, and to make a cop think it's okay to walk all over it might be wrong on my part. No?

Not exercising a right is one thing, but throwing it down the drain and helping keep the mentality of these cops that they can walk all over the bill of rights is almost offensive. This nation's founding fathers put it all on the line to become an independent nation that would go on to have a constitution and a bill of rights. Who am I to aid in making police officers think it's okay to walk all over that? That's whats going on in my mind and that is why I have a bit of a problem just showing it to get rid of the cop.

hammer6 · Oct 24, 2011

Schlitz said:
This is brought up here and there throughout the forums, but I wanted to talk more about it.

(if you've never heard of this you can read about it here http://scholar.google.com/scholar_c...60411591&q=790.053&hl=en&as_sdt=4,10&as_vis=1)

I'm curious about how others feel about how they'd respond to being stopped by the police for carrying concealed but obviously carrying.
If stopped by a police officer for your obvious bulge from your OWB holster, will YOU comply with 790.06? Or will you inform the police officer of your 4th Amendment rights and how the District Court of Appeal of Florida held that stopping you solely based off of possession of a firearm violates the 4th?

Also, with the holdings in the majority opinion of the Regalado case I feel that with the new briefly display law a police officer could see for himself a gun briefly show its muzzle under your shirt line and not be able to stop you based off of that. Am I wrong here?

I think personally if I was with my family and didn't feel like dealing with any bull crap I would just show the license and let the cop know how he has done his part to shred the constitution, but if I was alone with time to kill I'd probably refuse.

------------------------------

On this note, last week a friend of mine told me he was out with another one of his armed guard friends. The friend has a valid CWL and was carrying in his duty holster, bulging under his shirt BIG TIME - yet still the firearm was removed the ordinary sight IAW 790.001 subsection (2). A police officer stopped them and demanded to see a CWL. The friend first refused. At this point the cop (who I am told was being a you know what) threatened them with arrest and threatened to confiscate the license. (I found this odd seeing as 790.06 considers failing to display a CWL upon demand by a LEO a noncriminal violation with a penalty of $25.) Out of fear of being arrested and possibly losing his job over what may come if it the friend caved in and provided his CWL.

Just wanted to share that situation with you to analyze. I know it's not a lot of detail, but I heard it second hand. I was called up soon after it happened because, amongst my friends, I'm known to live on these forums and know a little bit about FL laws regarding firearms.
------------------------------

My main reason for this thread is because I carry OWB a lot, when the wind blows my shirt my gun is visible (briefly displayed), and I wear certain shirts that let the muzzle become visible under my shirt line when I move different ways. I plan on exercising my rights as held in Regalado v. State if stopped by a LEO and I just want to make sure I'm in the right. A second, third, fourth set of eyes on my opinion would be great. If you see something in my way of thinking that is just way off, LET ME KNOW!

i'd do the same as you

77zach · Oct 24, 2011

On a related topic, it struck me afresh how retarded the OC law here is. A guy walked into a deli I was eating at with a fanny pack on and there was a line so he stood right next to me for a minute. I asked him what his carry piece was and he turned red like I outed him or something. I mean really, a fanny pack? Many people and any cop would/should think gun on seeing a fanny pack. Fanny pak? No problem! Have any metal or plastic of the gun show and slap on those cuffs! Dumb, dumb, dumb.

ixtow · Oct 24, 2011

It seems to me, and always has, that 790.06 is in violation of the 4th Amendment.

That said, you'll never win that one on the side of the road. Just like my concerns about the penalty for refusing now being something we cannot fight.

My life savings jingles, and no hope of that doing anything but becoming even less... I'd be glad to press the matter, but I cannot afford it. I hope you've got money to burn... I'd be glad to back you up, but I dunno how far away you are from my location.

RetiredOC · Oct 25, 2011

ixtow said:
It seems to me, and always has, that 790.06 is in violation of the 4th Amendment.

That said, you'll never win that one on the side of the road. Just like my concerns about the penalty for refusing now being something we cannot fight.

My life savings jingles, and no hope of that doing anything but becoming even less... I'd be glad to press the matter, but I cannot afford it. I hope you've got money to burn... I'd be glad to back you up, but I dunno how far away you are from my location.

But that's just the thing, why wouldn't you win? The court's majority opinion says:

Despite the obvious potential danger to officers and the public by a person in possession of a concealed gun in a crowd, this is not illegal in Florida unless the person does not have a concealed weapons permit, a fact that an officer cannot glean by mere observation. Based upon our understanding of both Florida and United States Supreme Court precedent, stopping a person solely on the ground that the individual possesses a gun violates the Fourth Amendment.

Since this is a majority opinion, doesn't that make it law? If a copy stopped me because my gun was briefly displayed or beacuse I had an obvious buldge, couldn't I hand him a printed copy of Regalad v. State court opinion and walk away?

Statkowski · Oct 25, 2011

It's illegal to operate a motor vehicle on a public thoroughfare without an operator's license. If a cop sees you driving a car, can he stop you just to ensure you have an operator's license? Short answer - no. Unless other circumstances come into play warranting a stop, such a stop would be a 4th Amendment violation.

The same holds true with firearms.

Think about it.

ixtow · Oct 25, 2011

Schlitz said:
But that's just the thing, why wouldn't you win? The court's majority opinion says:

Since this is a majority opinion, doesn't that make it law? If a copy stopped me because my gun was briefly displayed or beacuse I had an obvious buldge, couldn't I hand him a printed copy of Regalad v. State court opinion and walk away?

I don't think anyone would say you're wrong; except for an Opinion Enforcement Officer.

I'd be right there with you if I had any money. But I gotta pick my battles...

ixtow · Oct 25, 2011

Statkowski said:
It's illegal to operate a motor vehicle on a public thoroughfare without an operator's license. If a cop sees you driving a car, can he stop you just to ensure you have an operator's license? Short answer - no. Unless other circumstances come into play warranting a stop, such a stop would be a 4th Amendment violation.

The same holds true with firearms.

Think about it.

I've said the same thing dozens of times.

But!

What do you do when the cops does it anyway?

You better have your video/audio recorder rolling. Cops Lie. They'll destroy their own dash cam video faster than you can say the words.

Since I created my immediate HD video upload system on my Captivate and informed the problem LEAs of it, I've had virtually no harassment. Destroying the recording device doesn't hep them anymore, because my data streams up to a server. QIK is similar, but is low rez and has that big, convenient delete button. Knowing that everything they do will be saved in glorious and untouchable 720p has made them decide I'm not the target they want...

Rich7553 · Oct 25, 2011

US v. Montague, Court of Appeals, 11th Circuit 2011

http://scholar.google.com/scholar_case?case=7378742183827462002

Regalado was a 4th District decision. However, Montague's conviction occurred in the 3rd District. Since the Florida Supreme Court hasn't ruled on this topic, the 11th Circuit used the precedent set in the same district as Montague's conviction.

State v. Navarro, 464 So. 2d 137 - Fla: Dist. Court of Appeals, 3rd Dist. 1984

http://scholar.google.com/scholar_case?case=8399011168827825629&hl=en&as_sdt=2,10

hammer6 · Oct 26, 2011

ADulay said:
OK, I know I'm going to get beat up for this reply, but what the heck, it's kind of a free country.

The police officer has just noticed your "bulge" and he's not a gay cop.

He is not stopping and asking you for ID because of the gun. He's asking you for ID because carrying a concealed weapon is illegal without the permit/license.

As a permit holder, if you have trouble "concealing" your weapon, you can probably expect to be asked about it in some situations.

Show the man your permit and move on! Simple, fast and no hassles.

Or, you could get into a pessing (sp) contest and go back and forth about it and escalate what should have been a 30 second encounter into a multi-officer extravaganza that nobody wants.

If your concealed weapon was, well, concealed in the first place, this wouldn't have happened so YOU, (not you personally), the person with the bulging Casull 454 in your European style Speedo swim trunks, can probably expect to be asked about the OBVIOUS CONCEALED GUN in your pants.

Or am I seeing this "problem" all wrong?

AD

actually- case law kinda makes it clear that he CAN'T stop you and ask for ID under suspicion of carrying a concealed weapon, because it is LEGAL with a permit, and he doesn't know if you have a permit or not.

ixtow · Oct 27, 2011

hammer6 said:
actually- case law kinda makes it clear that he CAN'T stop you and ask for ID under suspicion of carrying a concealed weapon, because it is LEGAL with a permit, and he doesn't know if you have a permit or not.

But, they do it anyway. You have to have the money for a defense, or you won't beat the rap OR the ride.

rvrctyrngr · Oct 27, 2011

hammer6 said:
actually- case law kinda makes it clear that he CAN'T stop you and ask for ID under suspicion of carrying a concealed weapon, because it is LEGAL with a permit, and he doesn't know if you have a permit or not.

Read the affirmation in US v Montague that Rich posted above. The 11th Circuit seems to think it's perfectly fine to Terry stop because of the presence of a firearm because it's normally illegal to carry a concealed weapon in FL...only about 5% of population is allowed to do so (hold CWFLs).

So now which way do we go? Montague or Regalado/JL???

RetiredOC · Oct 27, 2011

Well **** it. I've got a family to feed and I can't afford to lose my job over my rights at this moment. I guess it'd be best to show the CWL. For some reason I just want to pretend that I live in a free country, the truth is - I don't.

Like ixtow said, it doesn't matter if you're right, cops lie and get away with it. They ARE the law now. I feel that the badge has too much power to give to any fallible human being, but that is the way it is.

Things like this make me wonder, why the hell do we still have, "Land of the free" in our national anthem? Why do we always use the words "freedom" when referring to things American? Isn't the constitution, specifically the bill of rights, the thing that makes us so different from everyone else? What the hell is the point of it seeing as it doesn't even apply to us? Why is supporting and defending the constitution in the oath of enlistment? The oath of political offices? why? /side rant

EDIT: Though I, and others here, complain about our lack of freedoms and rights, it is important to note that we still live in what I believe to be the greatest nation out there. We complain that we have licenses to exercise a right, while many people around the world would only dream of such a thought. I'm not supporting the CWL, but saying, it is better than nothing for now. We must still strive to restore our rights and freedoms at the polls.

hammer6 · Oct 27, 2011

rvrctyrngr said:
Read the affirmation in US v Montague that Rich posted above. The 11th Circuit seems to think it's perfectly fine to Terry stop because of the presence of a firearm because it's normally illegal to carry a concealed weapon in FL...only about 5% of population is allowed to do so (hold CWFLs).

So now which way do we go? Montague or Regalado/JL???

but the thing is- dude was a felon, meaning, it was illegal for him to OWN a gun, let alone possess it. a citizen who is NOT a felon can own and possess a gun, and it's not a CRIME.

the tip was that a FELON was in possession of a gun, which is a crime. thus, the cop had "reasonable suspicion" that a crime was involved in, or was about to be involved in, criminal activity.

i think that only because the guy was a felon, the cop had the reasonable suspicion of a crime. because carrying a gun without a permit is NOT a crime, if the person HAS a permit, but not on them.

not only that, but the guy TOLD the cop he was carrying. florida law doesn't require notification.

Regalado v. State 2009

Campaign Veteran

Campaign Veteran

Regular Member

Campaign Veteran

Regular Member

Regular Member

Campaign Veteran

Regular Member

Regular Member

Founder's Club Member

Campaign Veteran

Regular Member

Founder's Club Member

Founder's Club Member

Regular Member

Regular Member

Founder's Club Member

Regular Member

Campaign Veteran

Regular Member