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[Note: This html text attempts to preserve as much of the formatting and pagination of the original brief, written in WordPerfect, as possible. More web resources: * The unanimous U.S. Supreme Court decision in this case, coming to the result urged in this amicus brief.
* A Legal Times article
quoting Kopel’s reaction to the unanimous decision. * A February article in Legal Times previewed the case, and reported on the broad amicus coalition.]
IN THE SUPREME COURT OF
THE UNITED STATES STATE OF FLORIDA Petitioner v. J. L., a
juvenile, Respondent ON WRIT OF
CERTIORARI TO THE FLORIDA SUPREME COURT BRIEF AMICI
CURIAE OF THE NATIONAL RIFLE
ASSOCIATION OF AMERICA & INDEPENDENCE
INSTITUTE IN SUPPORT OF
RESPONDENT *Robert Dowlut David B. Kopel
Michael Lojek
P. O. Box 341101 Bethesda,
Maryland 20827 301-530-8457,
303-279-6536, 703-267-1250 Attorneys for
Amici Curiae *Counsel of
Record
i QUESTIONS
PRESENTED 1. Whether the Florida Supreme
Court's decision on its face constitutes a plain statement that it is
alternatively based on bona fide separate, adequate, and independent state
grounds, and, therefore, pursuant to Michigan v. Long, 463 U.S. 1032 (1983),
this Court should not undertake to review the decision of the Florida Supreme
Court. 2. Whether the Florida Supreme Court erred
in declining to create a firearm or weapons exception to the limitations on
searches and seizures set out in the Fourth Amendment to the United States
Constitution.
ii TABLE OF CONTENTS Questions
Presented
i Table of
Authorities
iii Identity and
Interest of the Amicus Curiae
1 Summary of the
Argument
2 Argument
3 1. The Florida Supreme Court's
decision on its face constitutes
a plain statement that it is alternatively
based on bona fide separate, adequate, and independent
state grounds, and, therefore, pursuant to
Michigan v. Long, 463 U.S. 1032 (1983), this
Court should not undertake to review the
decision of the Florida Supreme Court.
3 2. The Florida Supreme Court did not err in declining to
create a firearm or weapons exception to the
limitations on searches and seizures set out in the Fourth
Amendment to the United States Constitution.
7 Conclusion
10
iii TABLE OF CITED
AUTHORITIES CASES Alabama v. White, 496 U.S. 325 (1990)
3, 10 Butts v. State,
644 So.2d 605 (Fla. Ct. App. 1994)
2, 6 City of Lakewood
v. Pillow, 180 Colo. 20, 501 P.2d 744
(1972)
8 City of Las Vegas
v. Moberg, 82 N.M. 626, 485 P.2d 737
(Ct.App. 1971)
8 Commonwealth v.
Couture, 407 Mass. 178, 552 N.E.2d 538
(1990), cert. denied, 498 U.S. 951
(1990)
9 Commonwealth v.
Hawkins, 692 A.2d 1068 (Pa. 1997)
2, 6 Cooper v. Aaron,
358 U.S. 1 (1958)
10 Glasscock v. City
of Chattanooga, 157 Tenn. 518, 11 S.W.2d 678
(1928)
8 Holland v.
Commonwealth, 294 S.W.2d 83 (Ky. 1956)
8 In re Brickey, 8
Ida. 597, 70 P. 609 (1902)
9 J.L. v. State,
727 So.2d 204 (Fla. 1998)
2, 6, 9 Junction City v.
Mevis, 226 Kan. 526,
iv 601 P.2d 1145
(1979)
8 Michigan v. Long,
463 U.S. 1032 (1983)
2, 3, 5-7 Mincey v.
Arizona, 437 U.S. 385 (1978)
10 People v.
Nakamura, 99 Colo. 262, 62 P.2d 246
(1936)
8 People v.
Zerillo, 219 Mich. 635, 189 N.W. 927
(1922)
8 Prune Yard
Shopping Center v. Robbins, 447 U.S. 259
(1980)
4 Terry v. Ohio,
392 U.S. 1 (1968)
3, 6 Texas v. Johnson,
491 U.S. 397 (1989)
10 Soca v. State,
673 So.2d 24 (Fla. 1996)
5 State ex rel.
City of Princeton v. Buckner, 180 W.Va. 457,
377 S.E.2d 139 (1988)
8 State v. Kerner,
181 N.C. 574, 107 S.E. 222
(1921)
8 State v.
Rosenthal, 75 Vt. 295, 55 A. 610 (1903)
8 United States v.
Clipper, 973 F.2d 944 (D.C. Cir. 1992)
6 United States v.
DeBerry, 76 F.3d 884
v (7th Cir. 1996)
6 United States v.
Eichman, 496 U.S. 310 CONSTITUTIONAL
PROVISIONS Florida Constitution, Article I, ' 12
4 U.S.
Constitution, Fourth Amendment 3, 7 OTHER AUTHORITY Clayton E. Cramer
& David B. Kopel, "Shall Issue":
The New Wave of Concealed Handgun Permit
Laws, 62 Tenn. L. Rev.
679 (1995)
8
John R. Lott,
Jr., More Guns, Less
Crime: Understanding Crime and
Gun-Control Laws (1998 Univ.
Chicago Press)
8
1 IDENTITY AND
INTEREST OF AMICUS CURIAE[1] Both petitioner and respondent have
graciously consented to the filing of this brief, which supports the position of
respondent. The National Rifle Association of America,
chartered in 1871, is a nonprofit, nonpartisan, nationwide membership
organization. The NRA is not
only the oldest sportsmen's organization in America, but also is an educational,
recreational, and public service organization dedicated to the right of the
individual citizen to own and use firearms for lawful defense and recreation. The NRA is a New York not-for-profit corporation and is recognized as a '
501(c)(4) corporation under the Internal Revenue Code.
The NRA's principle office is in Fairfax County, Virginia. It is supported by membership dues and
contributions from public-spirited members and clubs.
It is not affiliated with any arms or ammunition manufacturer nor with
any business which deals in firearms or ammunition.
It receives no appropriations from Congress. The NRA has previously filed numerous
amicus curiae briefs in both state and federal courts. Recent example are United States v.
Emerson, U.S. Court of Appeals for the 5th Circuit, Appeal No. 99-10331;
HC Gun & Knife Shows v. City of Houston, U.S. Court of Appeals for the
5th Circuit, Appeal No. 98-20497;
Kasler v. Lungren, California Supreme Court No. S069522, reviewing 61 Cal.
App.4th 1237, 72 Cal. Rptr.2d 260 (1998); Edwards v. City of
2 Goldsboro, 178
F.3d 231 (4th Cir. 1999). A recent
example before this Court
is Printz v. United States, 138 L.Ed.2d 914 The Independence Institute is a free market
think tank based in Golden, Colorado. Dedicated to the ideals of the
Declaration of Independence, the Independence Institute has been rated as one of
the four most effective state level think tanks by The Nation magazine.
The Institute has previously filed amicus curiae briefs in cases involving the
First Amendment, the Second Amendment, and the Colorado Constitution. The Institute's extensive research on
criminal justice issues is available at
http://i2i.org/crimjust.htm SUMMARY OF
ARGUMENT The Florida Supreme Court held that "[f]or the reasons expressed below,
we decline the State's invitation to create a firearm or weapons exception to
the limitations on searches and seizures set out in the Fourth Amendment to the
United States Constitution and the parallel provisions of the Florida
Constitution." J.L. v. State, 727
So.2d 204, 205 (Fla. 1998). The
Florida Supreme Court relied mainly on two state casesCButts
v. State, 644 So.2d 605 (Fla. Ct. App. 1994), and Commonwealth v. Hawkins, 692
A.2d 1068 (Pa. 1997)--to find the search and seizure of J. L. to be
constitutionally unreasonable. This
constitutes a plain statement that
the Florida Supreme Court's opinion is alternatively based on bona fide
separate, adequate, and independent state grounds.
In Michigan v. Long, 463 U.S. 1032 (1983), this Court held that it is without
jurisdiction to
3 review a state
court decision which rests on an adequate and independent state ground. J. L. was subject to a search and seizure
based on an anonymous tip. The
police were unable to point to specific and articulable facts which, taken
together with rational inferences from those facts, reasonably warranted an
intrusion on J. L.'s Fourth Amendment rights.
The police were able to corroborate only innocent behavior.
The stop and frisk fails to meet the standards enunciated in Terry v. Ohio, 392
U.S. 1 (1968). The anonymous tip failed to exhibit
sufficient indicia of reliability to provide reasonable suspicion to make an
investigatory stop under Alabama v. White, 496 U.S. 325 (1990).
The Florida Supreme Court accordingly found a violation of the Fourth Amendment
and the Florida Constitution. It
refused to carve out a firearm or weapon exception to the federal and state
constitutions. Its decision was correct and should not be disturbed. ARGUMENT 1. THE FLORIDA SUPREME COURT'S
DECISION ON ITS FACE CONSTITUTES A PLAIN STATEMENT THAT IT IS ALTERNATIVELY
BASED ON BONA FIDE SEPARATE, ADEQUATE, AND INDEPENDENT STATE GROUNDS, AND,
THEREFORE, PURSUANT TO MICHIGAN v. LONG, 463 U.S. 1032 (1983), THIS COURT SHOULD
NOT UNDERTAKE TO REVIEW THE DECISION OF THE FLORIDA SUPREME COURT. This case presents a jurisdictional
question that should be addressed before reaching the Fourth Amendment to the
4 United States
Constitution. The Florida Supreme Court is at liberty to provide state law
protection of the rights of the people of Florida above and beyond the
protection which is guaranteed by the United States Constitution. This Court has
explicitly acknowledged each state's "sovereign right to adopt in its own
Constitution individual liberties more expansive than those conferred by the
Federal Constitution." Prune Yard
Shopping Center v. Robbins, 447 U.S. 259, 266-67 (1980). The state law ground in this case
is clearly adequate to support the judgment of the Florida Supreme Court, and
the state law ground is independent of the Florida Supreme Court's understanding
of federal law. Article I, '
12 of the Florida Constitution addresses searches and seizures and provides as
follows: The right of the people to be secure in
their persons, houses, papers and effects against unreasonable searches and
seizures, and against the unreasonable interception of private communications by
any means, shall not be violated.
No warrant shall be issued except upon probable cause, supported by affidavit,
particularly describing the place or places to be searched, the person or
persons, thing or things to be seized, the communication to be intercepted, and
the nature of evidence to be obtained. This right shall be construed in
conformity with the 4th Amendment to the United States Constitution, as
interpreted by the United States Supreme Court. Articles or information obtained in violation of this right
shall not be admissible in evidence if such articles or information would be
inadmissible under decisions of the United States Supreme Court construing the
4th Amendment to the United States Constitution.
5 This means that Florida's constitutional
provision on searches and seizures is linked to this Court's Fourth Amendment
jurisprudence. Nonetheless, the
Florida Supreme Court has interpreted this linkage in such a way that Florida's
constitutional provision on searches and seizures has an existence and scope
independent of the Fourth Amendment until this Court issues a controlling
decision. In the absence of a controlling decision
from this Court, Florida courts are still free to provide its citizens with a
higher standard of protection from governmental intrusion than that afforded by
the federal constitution. Furthermore, the Florida Supreme Court
decides independently for itself whether a decision from this Court is
controlling. Soca v. State, 673 So.2d 24, 26-27 (Fla.
1996). A misinterpretation by the Florida Supreme Court of the rulings of this Court when
construing the Florida Constitution is still an interpretation of the Florida
Constitution. An interpretation of state law even
under such circumstances is still beyond the jurisdiction of this Court under Michigan v. Long, 463 U.S. 1032
(1983). In Michigan v. Long, 463 U.S. 1032 (1983),
this Court held that it is without jurisdiction to review a state court decision
which rests on an adequate and independent state ground.
This Court noted that respect for the independence of state courts, as well as
avoidance of rendering advisory opinions, have been the cornerstones of this
Court's refusal to decide cases where there is an adequate and independent state
ground. If a state court chooses merely to rely
on federal precedents, then it need only make clear by a plain statement in its
judgment or opinion that the federal cases are being used only for the purpose
of guidance, and do not themselves compel the result that the court has reached.
In this way, both justice and judicial administration will be greatly
improved. If the state court decision indicates
6 clearly and
expressly that it is alternatively based on bona fide separate, adequate, and
independent grounds, this Court will not undertake to review the decision. In the present case the Florida Supreme
Court did consider the rulings of other jurisdictions which appear to recognize
a firearm exception to the general rule requiring reasonable suspicion before a
pat-down search can lawfully occur.
However, the Florida Supreme Court then plainly stated that it joins the
Pennsylvania Supreme Court in rejecting this exception.
J. L. v. State, 727 So.2d 204, 209 (Fla. 1998). The first paragraph of the Florida Supreme Court's opinion held:
"For the reasons expressed below, we decline the State's invitation to create a
firearm or weapons exception to the limitations on searches and seizures set out
in the Fourth Amendment to the United States Constitution and the parallel
provisions of the Florida Constitution."
J.L. v. State, 727 So.2d 204, 205 (Fla. 1998).
In reaching this result, the Florida Supreme Court relied
on Butts v. State, 644 So.2d 605 (Fla. Ct. App. 1994), a state case. Furthermore, the Florida Supreme Court
unambiguously rejected federal cases--United States v. DeBerry, 76 F.3d 884 (7th
Cir. 1996); United States v. Clipper, 973 F.2d 944 (D.C. Cir. 1992--appearing to
carve out a firearm exception to the reasonable suspicion test to justify a stop and frisk pursuant to Terry v.
Ohio, 392 U.S. 1 (1968). Instead,
the Court joined in the reasoning of the Pennsylvania Supreme Court in
Commonwealth v. Hawkins, 692 A.2d 1068 (Pa. 1997).
Hawkins is a state case that rests on state law.
This demonstrates clearly that the Florida Supreme Court looked at federal
caselaw, rejected it, and independently embraced state law guaranteeing broader
protection to the people than federal law. Under Michigan v. Long, 463 U.S.
1032
7 (1983), then,
this Court should not undertake to review the Florida Supreme Court's decision. This would be in harmony with this Court
holding that it is fundamental that state courts be left free and unfettered in
interpreting their state constitutions. In conclusion, the Florida Supreme Court's
decision on its face constitutes a plain statement that it is alternatively
based on bona fide separate, adequate, and independent state grounds. Therefore, pursuant to Michigan v. Long, 463 U.S. 1032
(1983), this Court should not undertake to review the decision of the Florida
Supreme Court. 2. THE FLORIDA SUPREME COURT DID NOT ERR IN
DECLINING TO CREATE A FIREARMS OR WEAPONS EXCEPTION TO THE LIMITATIONS ON
SEARCHES AND SEIZURES SET OUT IN THE FOURTH AMENDMENT TO THE UNITED STATES
CONSTITUTION. This case involves a juvenile.
The states treat the possession of firearms by juveniles differently than the
possession of firearms by adults for reasons that are so apparent that
discussion is not needed. However,
the petitioner's sweeping argument, if adopted, would essentially create a
firearm or weapons exception to the Fourth Amendment.
This sweeping argument was considered by the Florida Supreme Court and was
correctly rejected. The purpose of a police stop and frisk is
to prevent criminal activity. Some
activity is always criminal. Other
activity is only criminal under certain conditions.
The peaceful carrying of a firearm falls into the latter category.
8 Numerous states have nondiscretionary
right-to-carry firearm laws. Such state laws allow a responsible law-abiding adult to
obtain a license or permit to carry a handgun concealed.
Clayton E. Cramer & David B. Kopel, "Shall Issue": The New Wave of Concealed
Handgun Permit Laws, 62 Tenn. L. Rev. 679 (1995).
These laws have had a beneficial impact on crime.
John R. Lott, Jr., More Guns, Less Crime: Understanding Crime and Gun-Control Laws
43, 46, 94, 114 (1998 Univ. Chicago Press). Furthermore, in numerous states a person
has a constitutional right to peacefully carry a firearm unconcealed. Holland v. Commonwealth, 294 S.W.2d 83,
85 (Ky. 1956). Laws that unduly
restrict the right to carry firearms have been voided.
State ex rel. City of Princeton v. Buckner, 180 W.Va. 457, 377 S.E.2d 139 (1988)
(struck down firearm carrying law as too restrictive);
Junction City v. Mevis, 226 Kan. 526, 601 P.2d 1145 (1979)(struck down firearm
carrying ordinance as too broad); City of Lakewood v. Pillow, 180 Colo. 20, 501
P.2d 744 (1972)(struck down firearm law on sale, possession, and carrying as too
broad); City of Las Vegas v. Moberg, 82 N.M. 626, 485 P.2d 737 (Ct.App.
1971)(struck down firearm carrying ordinance as too restrictive); People v.
Nakamura, 99 Colo. 262, 62 P.2d 246 (1936)(struck down law prohibiting
possession of a firearm); Glasscock v. City of Chattanooga, 157 Tenn. 518, 11
S.W.2d 678 (1928)(struck down firearm carrying ordinance as too restrictive);
People v. Zerillo, 219 Mich. 635, 189 N.W. 927 (1922)(struck down statute
prohibiting possession of a firearm); State v. Kerner, 181 N.C. 574, 107 S.E.
222 (1921)(struck down pistol carrying license and bond requirement law as too
restrictive); State v. Rosenthal, 75 Vt.
9 295, 55 A. 610 (1903)(struck down pistol
carrying ordinance as too restrictive); In re Brickey, 8 Idaho 597, 70 P. 609
(1902)(struck down firearm carrying statute as too restrictive). Therefore, a police officer's knowledge
that a person is peacefully carrying a firearm, in and of itself, does not
furnish probable cause to believe that the person is illegally carrying that
firearm. The resultant stop is improper under
Fourth Amendment principles.
Commonwealth v. Couture, 407 Mass. 178, 552 N.E.2d 538 (1990), cert. denied, 498
U.S. 951 (1990). Indeed, law enforcement officers receive
training which correctly reflects this aspect of the law. Federal officers who receive an
anonymous phone tip claiming criminal activity, without more, are not trained to
effect a Terry stop or pat-down search. A frisk in a public place is not a petty
indignity. Instead, the officers must also possess
sufficient information to corroborate the anonymous tip about criminal activity. There must be sufficient facts
indicating the anonymous tip is reliable so as to give rise to a reasonable
suspicion that criminal activity is afoot. Whether reasonable suspicion exists is determined by the
totality of the circumstances test. In this case the anonymous tip stated
only "that several young black males were standing at a specified bus stop
during the daylight hours.... [T]he
one wearing the 'plaid-looking' shirt, was carrying a gun."
Further observation by the police revealed no suspicious or illegal conduct and
no additional suspicious circumstances.
Nonetheless, two police officers, without questioning or other introduction,
seized all three young men and subjected them to a frisk.
The record fails to disclose that any of the police
officers even suspected J. L. of being a juvenile.
727 So.2d at 205. The anonymous tip failed to exhibit sufficient indicia of
reliability to provide
10 reasonable
suspicion to make an investigatory stop. Alabama v. White, 496 U.S. 325 (1990). Therefore, all you had was an
anonymous tip about criminal activity and no specific and articulable facts
which, taken together with rational inferences from those facts, would
reasonably warrant an intrusion on Fourth Amendment rights. Some will argue for creating a firearm
exception to the Fourth Amendment for policy reasons. However, this Court has rejected a flag
burning exception to the First Amendment, a crime scene exception to the Fourth
Amendment, and a threat of mob violence and popular resistance exceptions to the
equal protection guarantee of the Fourteenth Amendment.
Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310
(1990); Mincey v. Arizona, 437 U.S. 385 (1978); Cooper v. Aaron, 358 U.S. 1
(1958). It should likewise reject a firearm or
weapon exception to the Fourth Amendment. In this light, the Florida Supreme Court
correctly decided the case before this Court. CONCLUSION For the reasons presented in the argument, amici curiae respectfully submit that the Court should relinquish jurisdiction or affirm the decision of the Florida Supreme Court.
Respectfully submitted, Attorney for Amici Curiae
[1]The parties have consented to the submission of this
brief. Their letters of consent have been filed
with the Clerk of the Court. No
counsel for a party authored this brief in whole or in part, and no person or
entity, other than the amicus curiae, its members, or its counsel, made a
monetary contribution to the preparation or submission of this brief. |
