Florida Gun Owners At Risk: NRA Asleep At The Switch

(3) NRAThere’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.

5 thoughts on “Florida Gun Owners At Risk: NRA Asleep At The Switch

  1. Doesn’t her dissent endanger all gun owners in America? All gun owners are to receive double and triple the sentence in a criminal case that non gun owners would. You are 100% right this is a back door step to strip people of their second Amendment Rights. This decision would also imperil all police officers in the land because they are in possession of firearms at all times. Do the Police deserve enhanced penalties if they commit a crime? Does a young cop who gets in a fight have to get an extra five years because his gun is at home? This is a dangerous decision.

  2. Matt: Judge Rothenberg’s incoherent “reasoning” has been flatly refuted by the majority. The majority noted “the gun” referred to in the “murder by gun” count and the enhancement statute is singular “the gun”, not guns, an moreover language in both that murder by gun, enhancement and reclassifications statute, makes clear the gun involved in the “crime” must be in the possession or “with arm’s reach” at the time of the crime. Of course,, as the majority points out, if the crime was conspiracy, the time frame could stretch. But John was acquitted of conspiracy. The crime is a single, solitary event. Connolly’s gun was not involved. Please re-read carefully the majority decision: In the Enhancement statute too it is explicit: at the time of the crime you must have the gun used in your crime in your possession. There’s no way getting around this.
    2. I agree with you that Rothenberg’s bizarre interpretation of the statute could lead to many abuses. However both the Enancement Statute and Murder by Gun statute have specific provisions which have been clearly interpreted correct by Florida’s appellate courts.
    As you know, too, bizarre interpretations of statutes will only apply to POOFs.
    P.S. I’ve previously quoted paragraph 4 of the Enhancement Statute which expressly requires the gun be “in the possession” or “within arm’s reach” at the time of the crime. You can argue that for conspiracy charges the crime’s time may be lengthy, involving weeks,, months or years, but always remember: John Connolly was acquitted of conspiracy. Here too Rothenberg is crazy because she apparently sees the “time of the crime” for all crimes as stretching to infinity. I’ve found her dissent incoherent, illogical and unbelievable. But so too did I find the majority decisions in the St. Pat’s Parade case.

  3. Matt: Here’s an extended comment attempting to clarify exactly what John Connolly was convicted of.
    What happened to John Connolly in Boston? What did the Boston jury say? 1: the jury acquitted John of all the more serious charges: It acquitted him of all charges relating to murder. It acquitted him of all charges which occurred during his 22 years as an FBI agent, except one. Almost all these charges sounded under both Obstruction of Justice and RICO.

    The More Serious Charges (relating to murder)
    Leaking info that led to Castucci’s murder (1970s): Not Guilty and Not Proven under RICO
    Leaking info that led to Callahan’s murder (1980s): Not Guilty and Not Proven under RICO.
    Leaking info that led to Halloran’s murder (1980s): Not Guilty and Not Proven under RICO

    CONCLUSION: Six separate charges alleging Connolly was linked to a murder, and he was acquitted of all six by the Boston jury.

    The Less Serious Charges (relating to lying, transmitting a bribe, etc.) Note Bene: The FEDS have never charged John Connolly with taking a dime for himself.
    Giving Morris money ($5,000) (1980s) Not Guilty under Bribery/Obstruction and Not Proven under RICO
    Giving Morris money ($2,000) (1980s) Not Guilty under Bribery/Obstuction and Not Proven under RICO
    Receiving a diamond ring from Bulger (1980s) Not Guilty under Bribery/Obstruction and Not Proven under RICO
    CONCLUSION: Six separate charges, acquitted of all six.

    So, the grand total is Connolly was acquitted in Boston of 12 separate charges.

    What was John Connolly found guilty of:
    Giving John Morris a case of wine with $1000 inside. (1980s.) Guilty under Bribery/Obstruction and Proven under RICO.
    (Connolly Retires from the FBI in 1990.)
    Telling Weeks an indictment was coming down (Dec. 1994) Guilty under B/O and Proven under RICO
    Telling Flemmi to lie (1998): Guilty under Obstruction and Proven under RICO
    Lying to an FBI agent (once) (1999) Guilty
    Writing a letter to a judge (once) 1999 Guilty under Obstruction and Proven under RICO.

    GRAND CONCLUSION: John Connolly was acquitted of all the serious charges, i.e.,all the murder-related charges; he was acquitted of six of the less serious charges and convicted of nine of the less serious charges. GRAND TOTAL: Acquitted of 12 charges, convicted of 9 charges. P.S. I may be missing one other minor charge (assisting Flemmi in the late 1990s) which would bring the GRAND TOTAL to 12 Acquittals and 10 or 11 convictions.

    What about Florida: In Miami, John was re-prosecuted by a team of Federal prosecutors (lead counsel Wyshak) and Florida prosecutors; the team was led by FED Fred Wyshak. The charge? The same charge he was twice acquitted of in Boston: leaking info that lead to Callahan’s death in 1982.
    The Verdict in Florida: Not guilty of first degree murder, not guilty of conspiracy to commit murder, but guilty of murder by gun. The Florida 3rd Circuit Appeals Court overturned that sole conviction because the statute of limitations had run, an essential element of the crime was never proven (that Connolly actually possessed the murder weapon) and the Enhancement Statute could not be applied because that statute also expressly requires that at the time of the crime the murder weapon be in your hand or “within arms’ reach.” So the Murder by Gun count was overturned.

    SUMMARY: John now stands acquitted of all charges linking him with murder, he stands convicted of one minor bribery charge committed during his 22 years as an FBI agent and several other minor crimes committed four to ten years after he left the FBI while he was a private citizen.
    I hope these facts are helpful to you, the patient, loyal reader.

    NOW ASK YOURSELF: Has any reporter or book writer at the Boston Globe or the Boston Herald ever made these facts clear to you. Has Howie Carr, the Corrupt Fatso, been lying to you all these years? Yes, they’re all lying by omitting salient facts. Howie Carr has written and said that John Connolly was convicted of “a great majority” or almost all the charges brought against him in Boston: That’s Carr’s bold-faced lie and now we all know it. Carr continues to tell his listeners that Connolly is “the most corrupt agent” in FBI history, yet Connolly was convicted of only one minor crime during his 22 years as an FBI agent.

  4. Matt, one final thought from NC. John Connolly is 9-0; declared innocent nine times of murder related crimes. The Veterans in the St. Pat’s case (1995) also won a unanimous victory, too, winning 9-0 at the U. S. Supreme Court. How many more times does John Connolly have to declared not guilty of murder before the Boston Globe will stop accusing him of murder.

  5. Matt: The Enhancement/Reclassification Statute:
    775.087 Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence.—
    (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,. . . ”
    Comment: Since the clear language excludes “a felony in which the use of a weapon or firearm is an essential element” and since the Murder by Gun statute on its face has as an essential element, i.e., “the use of” a gun, the Murder by Gun statute cannot be enhanced. So, it seems perfectly clear to me. Moreover, the gun must be carried, displayed, used etc. “during the commission of the crime “murder by gun.”
    Comment: The following is paragraph (4) of 775.087 which explicitly defines the word “Possession” as in the sections’ heading: “Possession or use of a weapon.” Possession is “carrying it on the person” or “within immediate physical reach . . . with intent to use the firearm during the commission of the offense.” Obviously John Connolly did not carry it (the murder weapon), did not have it within reach, and had no intent to use it (nor to use his service revolver) during the murder of John Callahan.
    “775.087 (4) For purposes of imposition of minimum mandatory sentencing provisions of this section, with respect to a firearm, the term “possession” is defined as carrying it on the person. Possession may also be proven by demonstrating that the defendant had the firearm within immediate physical reach with ready access with the intent to use the firearm during the commission of the offense, if proven beyond a reasonable doubt.”

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