Miami Weapon & Firearm Defense Lawyers

Second Amendment Rights Related to Weapons & Firearms Charges

Although the Second Amendment assures citizens of the right to keep and bear arms, the U.S. Supreme Court has determined that this right has certain limitations and that other governmental entities may enact laws restricting the use of firearms. Federal, state, and local gun laws exist that restrict the possession and use of guns. Firearms may be legally banned from certain places, may not be legally possessed or used by certain people (such as convicted felons), and certain types of firearms are in themselves illegal to own or use, like assault rifles.

The Second Amendment may be a viable defense in certain weapons cases and the Fourth Amendment, which prohibits unreasonable searches and seizures, may also apply. It is best to discuss the particular facts of a specific case with a skilled criminal defense attorney who is knowledgeable about all the possible legal defenses that may be available and the relative merits of pursuing various defense strategies.

Florida's "Stand Your Ground" Law

For more than a decade, Florida's controversial "castle doctrine" (Florida Statutes, § 776.013) has been law. Under the “castle doctrine," your home is considered your castle and you have no duty to retreat from your home if you are attacked. The “castle doctrine” has expanded in Florida into the “stand your ground” law. Under the “stand your ground” law, a person not only has no duty to retreat in his or her home, but also has no duty to retreat in any public place so long as the person is not engaged in criminal activity and is in a place where he or she has a right to be.

Under F.S. § 776.012(1), a person is justified in using force against another when that person reasonably believes that such force is necessary to defend himself or herself against the other’s imminent use of unlawful force. Under this statute, a person has no duty to retreat prior to using such force.

Under F.S. § 776.012(2), a person is justified in using deadly force if he or she reasonably believes that using such force is necessary to prevent imminent death or great bodily harm or to prevent the imminent commission of a forcible felony. A person who uses deadly force under the statute has no duty to retreat and has the right to stand his or her ground so long as the person using deadly force is not engaged in criminal activity and is in a place where he or she has a right to be.

Florida’s “stand your ground” law not only allows for a defendant to argue self-defense at trial, but it also authorizes anyone who is claiming self-defense under this law to file a “motion to dismiss based on statutory immunity” before trial. This effectively gives defendants two bites at the apple since they have two chances to get the case dismissed. Therefore, it is essential in every potential self-defense case to have your facts evaluated by an experienced attorney to see if you might be eligible to file a motion to dismiss based on the “stand your ground” law.

Florida Gun Laws Apply to Visitors & Tourists, Too

Millions of visitors and tourists pass through or vacation in Miami and Miami-Dade County every year, many of them arriving and departing by air. Agents of the Transportation Security Administration seized 24 guns at Miami International Airport in 2015, an average of two per month. Many of these guns were loaded. To comply with federal and Florida laws, a gun possessed by an air traveler must be unloaded, packed in checked baggage, and declared at check-in. Furthermore, Florida does not recognize legal gun permits from 15 other states, including New York and California, so a person who brings a gun to Miami on a flight from one of those 15 states may be charged with illegal possession of a firearm.

For a Miami visitor, an arrest on a gun charge is much more than an inconvenience. A defendant must appear in court at the appointed time, or a warrant will be issued. A qualified Miami criminal defense attorney can help in these instances, reducing the required court appearances while complying with the law and seeking a favorable resolution to the case.

Florida Penalties for Weapons & Firearms Charges

With dozens of weapons and firearms laws in Florida, the penalties run the gamut. Some gun charges are classified as misdemeanors, and other more serious charges are classified as felonies.

The maximum punishments for each offense classification (listed in order of severity) are:

• Second-degree misdemeanor — Punishable by up to 60 days in jail and fine of up to $500
• First-degree misdemeanor — Punishable by up to one year in jail and fine of up to $1,000
• Third-degree felony — Punishable by up to five years in prison and fine of up to $5,000
• Second-degree felony — Punishable by up to 15 years in prison and fine of up to $10,000
• First-degree felony — Punishable by up to 30 years in prison and fine of up to $10,000
• Life felony — Punishable by a sentence of up to life in prison and fine of up to $15,000
• Capital felony — Punishable by the death penalty

10-20-Life

Since 1999, Florida's harsh "10-20-Life" law (Florida Statutes § 775.087) has been in effect. The law requires mandatory minimum sentences for the use of a firearm during the commission of a forcible felony by persons as young as 16 years old.

The three primary prison sentences from which the law derives its name are:

• A mandatory minimum sentence of 10 years in prison for the actual possession of a firearm or producing a firearm during the commission of certain felonies
• A mandatory minimum sentence of 20 years for the unlawful discharge of a firearm during the commission of certain felonies
• A mandatory minimum sentence of 25 years in prison for the unlawful discharge of a firearm that causes death or great bodily harm during the commission of certain felonies

In addition to the penalties listed above, the "10-20-Life" law also imposes a mandatory minimum prison sentence of three years for the actual possession of a firearm by a convicted felon. The penalties listed above are the statutory minimum sentences; judges are legally unable to impose any lesser sentences.

According to F.S. 775.087(2)(a)(1), the crimes that are subject to the "10-20-Life" law when a weapon is used are:

• Aggravated abuse of an elderly person or disabled adult
• Aggravated assault
• Aggravated battery
• Aggravated child abuse
• Aggravated stalking
• Aircraft piracy
• Arson
• Burglary
• Burglary of a conveyance
• Carjacking
• Escape
• Home-invasion robbery
• Kidnapping
• Murder
• Possession of a firearm by a felon
• Robbery
• Sexual battery
• Throwing, placing or discharging of a destructive device or bomb unlawfully
• Trafficking in a cannabis, cocaine and certain other controlled substances listed in Florida Statutes § 893.135(1)

Find an Attorney for Weapons or Firearms Charges in Miami

If you were arrested for a weapons or firearms charge in Miami, Florida, or Miami-Dade County, then you should talk to a criminal defense attorney about your case. Serious penalties may result if you are convicted and a knowledgeable defense lawyer can be extremely helpful.

Our founding attorney E.J. Hubbs can provide professional guidance and counsel while investigating every facet of your case. We may be able to discover evidence that results in a reduction of charges, but our goal is to earn a dismissal of your charges. Hubbs Law Firm tenaciously defends clients charged with gun crimes in Miami and all over Miami-Dade County, including Miami Beach, Miami Gardens, Hialeah, North Miami, South Miami, Cutler Bay, The Hammocks and everywhere else in the county.

Call Hubbs Law Firm today at (305) 570-4802 to make an appointment with our  attorney to discuss your weapons or firearms charges.

Additional Resources

• Florida Statutes, Title XLVI, Chapter 790 — Weapons and Firearms — Read the Florida laws related to weapons and firearms.
• Florida Department of Agriculture and Consumer Services — Division of Licensing — FDACS is the Florida government entity that administers the state's concealed weapons licensing program. On FDACS website, you can apply for a concealed weapons license, check the status of an application, update information on an existing license, renew a license, and read important notices and announcements, as well as learn about self-defense issues related to firearm possession and carrying a concealed weapon.
• National Rifle Association Institute for Legislative Action (NRA-ILA) — The NRA-ILA website provides an overview of Florida’s gun laws along with a map of the states with which Florida reciprocates on weapons permits. Also included are links to volumes of information about gun ownership, including topical news and issues.