FL: Miami Beach Police Detain Legal Open Carriers, Chill First Amendment Rights

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Image from local10.com:

On June 24, at about 10 a.m. citizens peacefully openly and legally carrying holstered pistols were detained by police for two hours. The police closed the pier where the Second Amendment activists were fishing.

The legal open carriers were eventually released and allowed to continue their activities. However, police remained at the scene and actively discouraged other members of the public from making contact with the Second Amendment activists. From miamiherald.com:

Police reopened the pier, but left a couple of officers there and stated, “We are encouraging visitors to use other portions of South Pointe Park.”

The men cited Florida Statute 790.25(3), the (h) subsection of which allows openly carrying a gun by “person engaged in fishing, camping, or lawful hunting or going to or returning from a fishing, camping, or lawful hunting expedition.” They came prepared with a print out of the statute.

The action is almost certain to result in a lawsuit or lawsuits against Miami Beach for numerous violations of Constitutional rights.  From local10.com:

Eric Friday, general counsel for Florida Carry, said the men were held by police for two hours and had guns drawn on them.

“Overreaction would be an understatement, but I do believe they overreacted,” Friday said.

Friday said his group planned to take legal action against the city for how the police handled the situation.

If you look at the image from  local10.com, you can see that at least one Second Amendment activist was wearing a body camera. He appears to be in restraints.

The group associated with the event, Florida Carry, is a well managed resourceful, and experienced Second Amendment group. They have won several settlements in Florida courts. It is likely that more than one video camera was recording events. Florida Carry had this comment on its Facebook page:

The illegal attack on our members by the Miami Beach PD is a developing incident. We are pouring every necessary resource in to this incident.

Most of the news coverage of the police action says the Second Amendment activists were “briefly detained”. Two hours is not “briefly detained”. There is considerable court precedent about the definition of “briefly detained”. It is less than 10-20 minutes.

In this case, there was no probable cause. There was no reasonable suspicion. Open carry demonstrations while fishing have been ongoing in Florida for several years, and have been widely publicized.

The use of police resources to actively persuade members of the public to avoid contact with open carriers is an important twist to this event .

Open carry demonstrations are powerful, protected, symbolic speech. The stated purpose of the demonstration was to exercise First Amendment rights to protect and advance Second Amendment rights.

The Miami Beach Police used their police power to directly chill the exercise of the First Amendment, without any legal reason to do so.

I predict this will not end well for Miami Beach.

Florida remains one of the five states where open carry of pistols is generally prohibited in public by state law. There are a few exceptions, such as open carry while camping or fishing or while in transit to and from such activities.

General open carry, as legal in 45 states, has been stalled in the legislature for the last few years through underhanded defections by Republicans and through machinations of the Republican leadership.  Those Republicans tend to lose their seats.

Eventually, I expect open carry to pass in Florida. There is no valid reason for it to be illegal.

There is one invalid reason. Open carry makes a loud, clear, political statement: the Second Amendment is real, and it means something.

Those who wish a disarmed population find that statement insufferable.

©2018 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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