There’s an old saying: bad cases make bad law. If Judge Leslie Rothenberg’s dissent in Florida in the case of Connolly vs Florida becomes the law of the state then anyone owning a gun in Florida better think twice about whether it is worth it. One must ask is this a subtle way by the judiciary to deprive Floridians of the right to own firearms; if so, will nationwide judicial activism be the new way to take firearms away from people.
The law in question is Section 775.087(1) which provides in relevant part: (1)Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified: . . . .
Reclassifying the statute means the punishment is greatly increased. Judge Rothenberg notes: “The statue is clear and unambiguous.” I agree. It says to me that during the commission of a felony if a firearm is present being carried, displayed, etc., the penalty can be increased.
So what’s the problem? Well it seems Judge Rothenberg says that the term commission of such felony means at any stage of the felony. She says that means “at any time and any place” carrying, displaying, etc. of a firearm is enough to increase the penalty. She goes on to state the person need not be present at the crime but as long as the person ““did some act” — not the last act – ‘or said some word which was intended to and which did incite, cause, encourage, assist, or advise the other persons to actually commit or attempt to commit the crime.” (her emphasis)
An example of the latter is that of the person is sitting in the getaway car while the friend breaks into a store or one who had the tools to commit the burglary at her apartment and provided them to the burglar so that she could break into the Seven-Eleven to get cigarettes. In Massachusetts an accessory before the fact of a crime is treated in the same manner as a principal. This appears to be the law in Florida.
The facts in the Connolly case are that John Callahan was lured to Florida and shot in the head as he got into a car at the airport by John Martorano who was assisted by Joe McDonald. Connolly’s involvement according to the federal and state prosecutors is at some indeterminate time prior to this happening he suggested that John Callahan was a danger to these people and had to murdered. At the time he made this suggestion he was then an active FBI agent and he was carrying a gun. At the time of the murder of Callahan Connolly was someplace in Massachusetts, some say Cape Cod.
Now you might think that the gun Martorano used to murder Callahan is the gun we are talking about. It isn’t. The gun in question and which Judge Rothenberg says is the gun that the statute refers to is the gun Connolly was carrying at the time he planned the act with his co-felons even though he had it on him 1500 miles away from the site of the murder and perhaps several months prior to its occurrence.
There’s a common law maxim that criminal laws are to be strictly constructed and in doing that the intent of the legislature should be considered in determining how they apply. It seems quite obvious that the legislature intended the firearm had to be used in some manner in connection with the actual occurrence and in relation to the victim of the crime. Not at some remote date when the planning may have happened or in a situation where the victim has no idea that a firearm is involved. Otherwise almost in almost all felonies the enhancement statute can be used, especially in a state like Florida where guns are widely available and possessed.
Here’s three examples why a decision like Judge Rothenberg’s dissent would make bad law.
Jack and Jill live in the Panhandle of Florida and love to hunt wild boar. After hunting one day and nailing a boar they bring it home. While preparing it to eat they are cleaning their shotguns. They are out of booze and short on money but there is nothing they like more than having a couple of beers with their boar. They decide to go up to the liquor store on the highway to see if they can heist a six pack or two. They leave the food cooking and lock up their guns. They drive to the store and while Jill distracts the owner Jack grabs a six pack of cold Colt 45 malt liquor. Under Rothenberg’s dissent they could be charged with carrying a firearm and have the larceny charge enhanced.
Sam a law abiding citizen who sometimes transports large amounts of cash always carries his gun locked safely in the trunk of his car. Driving down the Tamiami Trail this hot July day some young gangster-looking teenager cuts in front of his car nearly hitting it. Sam’s not having a good day so he flies into a rage. At the next intersection he cuts in front of the teenager, grabs a Billy club he keeps under his seat, goes over and confronts the kid. He smashes the window of the kid’s car and then realizing he’s out of control he calms down. Sam is charged with malicious destruction of property, a felony. The prosecutor decides to use the gun in the trunk as a sentence enhancer.
One final example. A group of art thieves decide to break into an art museum at night and make off with some fine paintings. They plan the heist in great detail over several months. During one of the sessions, Max boiling over with enthusiasm goes into his den and comes out with a new rare firearm he just bought for his firearm collection. He carries it into the room and displays it to the others. Each one takes it and admires it. Max then puts it away. That incident, again where the firearm has no conceivable relationship to the crime, can be used to enhance the penalty.
Judge Rothenberg by suggesting a crime is a continuing offense and at any time during the planning stage any person carried or displayed a firearm and that even though the gun had no connection with the carrying out of the felony the penalty can be enhanced is plainly absurd.
If her dissent becomes law in Florida then it’s just another way for those who want to restrict firearm ownership are chipping away at gun owners rights. I’m surprised the NRA hasn’t been screaming about this.