By Patrick Leary, a St. Petersburg Neighbor
It is 2.5 weeks since I found out about Mr. Carannante's intent to fire his weapons at a small, makeshift target in his side yard less than 20 feet from where my son plays and where my neighbors sleep (something we've all done precious little of this week). In the ensuing days, I've received a crash course in civic activism and political reality.
I've met both the current and past mayors, spoken with staff of senators, a state representative or two, a Councilman, and a throng of reporters. I've thanked a DJ on air and a shooting range GM in private. I talked to a handful of cops, hundreds of parents at a PTA meeting, interviewed with press in New York, met an activist or two, received advice of former lobbyists, launched a petition (5,000 names and counting), written 7 blogs, an OpEd, organized a news conference attended by the Mayor, and read the Governor's dismissive form reply to my neighbor.
I also shook the hand of the man who not several days before represented a genuine mortal threat to my neighbors...
That's not hyperbole. This young man had erected a 4x4x4 foot target of pallets, and sand -- half of which was spilling out like sand in an hour glass. Behind that meager target was nothing but a fence and the back wall of an occupied home. Consider that, according to the RAND Corporation in a study of the effectiveness of the NYPD's shooting training, an officer can miss 22% of fixed targets and still qualify with his firearm. FIXED targets -- not unlike that pile of rubble in Mr. Carrannante's yard. But if he had missed 22% of his shots, those bullets were going into the home behind him. So 22% misses gets you a passing grade at the NYPD; in Florida, it maybe gets a neighbor dead.
To the great shame of all of Florida, this immediate issue could not be solved by law enforcement. Instead, it took radio DJ Mike Calta and Shooter's World to rescue our community. It is not because our officers did not want to act, it is because they could not. They could not act out of fear of being suspended and fined $5,000 and being made the subject of personal law suit with liability up $100,000 . And for good measure, the law precludes them from using public resources for their defense, even if they had acted within their official capacity.
How did we get here? Two words, "reckless" and "negligent," and a law passed literally under the watchful eye of former NRA president Mariam Hammer above in the chamber gallery, and signed subsequently by an equally-cowed Florida Governor. The law they passed included this nugget from Florida statute 790.33:
(3) PROHIBITIONS; PENALTIES.—
(a) Any person, county, agency, municipality, district, or other entity that violates the Legislature’s occupation of the whole field of regulation of firearms and ammunition, as declared in subsection (1), by enacting or causing to be enforced any local ordinance or administrative rule or regulation impinging upon such exclusive occupation of the field shall be liable as set forth herein.
(b) If any county, city, town, or other local government violates this section, the court shall declare the improper ordinance, regulation, or rule invalid and issue a permanent injunction against the local government prohibiting it from enforcing such ordinance, regulation, or rule. It is no defense that in enacting the ordinance, regulation, or rule the local government was acting in good faith or upon advice of counsel.
(c) If the court determines that a violation was knowing and willful, the court shall assess a civil fine of up to $5,000 against the elected or appointed local government official or officials or administrative agency head under whose jurisdiction the violation occurred.
(d) Except as required by applicable law, public funds may not be used to defend or reimburse the unlawful conduct of any person found to have knowingly and willfully violated this section.
(e) A knowing and willful violation of any provision of this section by a person acting in an official capacity for any entity enacting or causing to be enforced a local ordinance or administrative rule or regulation prohibited under paragraph (a) or otherwise under color of law shall be cause for termination of employment or contract or removal from office by the Governor.
(f) A person or an organization whose membership is adversely affected by any ordinance, regulation, measure, directive, rule, enactment, order, or policy promulgated or caused to be enforced in violation of this section may file suit against any county, agency, municipality, district, or other entity in any court of this state having jurisdiction over any defendant to the suit for declaratory and injunctive relief and for actual damages, as limited herein, caused by the violation. A court shall award the prevailing plaintiff in any such suit:
1. Reasonable attorney’s fees and costs in accordance with the laws of this state, including a contingency fee multiplier, as authorized by law; and
2. The actual damages incurred, but not more than $100,000.
If you've not the patience to read this, it is simple: your state legislators, under duress from the NRA, enacted a law that threatens your police, your mayors and your prosecutors with financial ruin if they try to do anything related to firearms. The only two words they have to go on when deciding if to act are "negligent" and "reckless," words left threateningly undefined, the semantic simile to Mrs. Hammer's looming over your representatives in the gallery of the statehouse.
The result? No one dares do anything. The result of that? A dead man, killed Christmas day 2013 in Volusia county in his own backyard; a bullet slammed into his chest from a shooter honing his skills in a nearby yard. The result? A woman's home in Lithia gets shot up by AK47 rounds by an off-duty police officer and a fireman, themselves practicing a few hundred feet away. And the result of both of those incidents? No charges; they been left labeled as accidents. Why? The prosecutor does not want to be sued either, for misinterpreting "reckless" or "negligent." Pardon me, but if your shooting is so poor your round ends up in some man's chest or some woman's wall, is that not the definition of "negligent" and "reckless"?
Prosecutors also know any conviction they might secure under current law won't hold up in appeal because of the vagueness of the terms "reckless" and "negligent." There's a doctrine in law called "void for vagueness" that essentially says laws that are vague are null since law enforcement does not know its boundaries under the law and judges and juries are left unguided as well. This is the exact same reason Montanta some years ago abandoned it's experiment with no speed limits, instead requiring drivers to use speeds that were "reasonable" and "prudent." That law was challenged in court and the defendant won and had his conviction overturned:
The dispositive issue on appeal is whether § 61-8-303(1), MCA, is so vague that it violates the Due Process Clause found at Article II, Section 17, of the Montana Constitution. - See more at: http://caselaw.findlaw.com/...
The concept of void for vagueness is even more acute where the law addresses Constitutional issues, like the Second Amendment. In such case the law must be highly specific. As it is, Americans have been arguing about the meaning of that amendment for over two centuries and its phrasing is far more clear than "reckless" and "negligent."
Recently a St. Petersburg man accidentally ran over and killed his friend's 2-year old child backing out of their driveway. It is a horrendous tragedy and my heart aches for the child's parents. Yet, I understand charges are being filed, presumably manslaughter based on negligence or recklessness. Why is that accident different than those done far more intentionally with people literally playing with firearms? Why is the reckless and negligent standard more readily applied in the driveway death? Because the NRA is not trolling traffic court.
One week post our crisis with the South Saint Pete "gun range," HB623 has been entered by Rep. Darryl Rouson to ban residential gun ranges. I understand from personal conversations with legislators that some are not thrilled with its language. So take it to committee, make some sausage and fix it -- we Floridians are dying to see this law fixed, again, literally.
This nonsense will continue so long as Floridians allow one lethally-myopic manufacturer's lobby -- let's at least be honest and admit this charade of protecting 2nd Amendment rights -- to hold our legislators, our law enforcement, and thus us, hostage. "Reckless" and "negligent" -- seems to me the perfect definition of FL Statute 790.33 and the current reputation of the NRA circa 2015.