Brad Post: Welcome to the FloridaDefense.com Podcast. We are speaking to Tampa Firearms Defense Lawyer Mike Kenny. Mike, how are you today?

Mike Kenny: I’m doing great. How are you?

BP: Doing well. Let’s kind of get into—A concealed firearm: that’s kind of a big thing going on.

MK: Sure. You know, the firearms law in the state of Florida is—I don’t want to say simple—but there aren’t a lot of restrictions on ownership of a firearm. There’s nothing really illegal about owning a firearm. You don’t need a special permit to own one. You don’t need a special permit to keep one in your house. Obviously you have to keep one safely in your home, especially if there are children in your home, but there’s nothing to where there’s a registry of people in Florida or you have to apply to have permission like you might in some other states. The unique thing about firearms is it comes up in two different areas where it becomes a crime. If it’s used in a criminal manner (if you’re shooting at somebody or committing a robbery), that brings you into a whole different scenario into Florida’s 10-20-Life law where possession of a firearm gives you a minimum mandatory of at least 10 years in prison if you’re using it to commit an enumerated felony. But what you normally see in firearms cases is just the possession of it in and of itself. A person who possesses a firearm, if they have it concealed on their person or so near their person that it’s considered on their person, that’s carrying it concealed. That’s illegal in the state of Florida unless you have a special permit that allows you to carry a concealed firearm. The alternative to that is, you also can’t just go walking around with a gun in your hand in the state of Florida. For instance, you can’t walk into a store and have a gun sitting on your hip in an open holster. That’s open carry, and that’s illegal. Walking around with a firearm in your hand is called an improper exhibition of a firearm potentially, depending on how it’s being held or displayed. So you can’t really have it open and you can’t have it concealed unless you have a license. Some people find themselves getting into trouble. The best way to go is—for anybody who is going to own a firearm, it makes a lot of sense to get a concealed weapons permit, and they require you to take certain firearms safety courses and go through specific background checks. (You obviously can’t be a convicted felon.) And that would allow you to carry a firearm in places you’re allowed to carry it. There are certain places you may not be allowed like an airport or bar, obvious places of nuisance. The unique thing about the carry and conceal firearm statute is there’s been a lot of cases addressing the two things the state needs to prove to convict someone of carrying a concealed firearm. For instance, I had a trial just last week where a person was charged with carrying a concealed firearm, and that case was unique. In that case, my client was pulled over, subject to a complaint about firearms being used in a potential crime. Officers came out, and officers, when they do a stop in a situation where they believe a person in the vehicle might be armed, they do what’s called a felony traffic stop. A felony traffic stop is when the officers come out with their guns already drawn, and it’s not like they turn their lights on and walk up to your window nicely and say, “Hey, I want to talk to you.” They’re concerned and want to make sure they get home to their families. So they come out with their guns drawn, and they have all of their lights on. They have special take down lights. They have special spotlights. They want to see every aspect of the car. And at the trial, the testimony was the officer saw my client, who was seated in the back of the vehicle, holding a firearm essentially over his shoulder, and kind of turned a little bit and throw his firearm over his shoulder into the back compartment of the car. And it went basically from the passenger component of the car into the trunk. They said they ordered my client out of the car, they secured him, they spoke with him, and my client maybe made some incriminating statements, according to the officers. And then the officers searched the trunk and found a gun sitting right there in the open compartment. Seeing this, the officers charged my client with carrying a concealed firearm. So instantly, when I was hired for that case, a couple of questions went through my mind. Question one was, I’m not really sure how concealed that is. Question two was, if it is concealed, is that firearm considered carried? Is that on the person or so near to the person that it’s readily accessible and considered on the person? Those are the two things the prosecutor has to establish. During the testimony at the trial, surprisingly, no one knew how the firearm got from the passenger part of the vehicle into the trunk. And we all probably can surmise how it happened—these backseats have these fold-back seats, and you can reach right into the trunk if you wanted to. For whatever reason, and it kind of surprised me in the middle of the trial, but there were really no photographs of what these seats looked like, just testimony of my client dropping something over his shoulder. There were no measurements performed when the firearm was seized. No pictures taken. So all you have was the officer’s word saying the guy dropped something over his shoulder, and then I found, when I cross-examined them, the officers could not clearly tell us where it was found in the trunk. So I told the judge, “That raises some issues.” The issue that it raises is, if they were going to consider that a concealed firearm, how could they show that my client could easily reach that? I don’t even know how it got back there. I don’t know if it was a big hole, a little hole. I don’t know if he could fit his body in there. In the end, the court agreed—although I think the court reluctantly agreed. I think the court was concerned about the facts in that case. The court had to abide by the law, and with the law as it is, the state wasn’t able to prove that my client could have accessed that firearm because there was no testimony that showed that. So the bottom line is, I think my client especially walked into that case thinking things weren’t going to be particularly great for him. Don’t ever do your own lawyering. Don’t ever do your own thinking. I mean, you can have some common sense and kind of see a picture on the wall and realize, “This isn’t very good.” But don’t ever wave the white flag before you hire a lawyer. Hire a lawyer. Have somebody do the work for you. Have somebody do the research because amazing things can happen when somebody sits down and dedicates themselves to defending you. In that set of circumstances, things worked out really well.

BP: All right. Anything else on firearms?

MK: No.

BP: All right. You’ve been listening to the FloridaDefense.com Podcast with the Bauer, Crider, and Parry Law Firm, and we’ve been speaking to Tampa Firearms Defense Attorney Mike Kenny.