CLICK HERE to read the unanimous U.S. Supreme Court decision in
this case;
the Court came to the result urged in the amicus brief below.
The opinion was written by Justice Ginsburg, who wrote,
"The question presented in this case is |
whether an anonymous tip that a person is carrying a gun is, |
without more, |
sufficient to justify a police officer's stop and frisk of that person. |
We hold that it is not." |
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
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
(1990)
10
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
(1997). Furthermore,
the NRA is familiar with the questions involved in this case and
the scope of their presentation. It will oppose
petitioner's invitation to this Court to carve out a firearm
or weapons exception to the 4th Amendment.
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,
Robert Dowlut
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.