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Martin 9/12 Calendar (& City of Stuart)

Wednesday, June 12, 2013

Who is defending the Second Amendment here in Florida?

We received a detailed response back today from Governor Scott’s office concerning our support for Sheriff Nicholas Lee Finch of Liberty County, who was arrested by agents of the Florida Department of Law Enforcement. Sheriff Finch was arrested on June 4th on charges of “official misconduct” after he, on March 8, 2013, invalidated the arrest of a citizen who was found by patrol officers in a traffic stop to be in possession of a firearm without a state “Concealed Carry” permit. (The pistol was in the driver’s pocket instead of the glove box and the “offender” was under the “control” of the officer making the stop.)

We can’t have all of the facts and circumstances of this series of events, but as a former law enforcement supervisor (different state), I can speculate on what would motivate a sworn officer to invalidate such an arrest. Subsequent actions by FDLE cannot be explained with anything but political jabberwocky. 

When a field officer makes an arrest without a warrant on any charge, the circumstances of the arrest MUST be reviewed by supervision in order to maintain the integrity of the department. Before a mistake goes any further than it should, supervisors are charged with the duty to invalidate an arrest if they find that it does not conform to standards set by law and/or by department policy. Supervisors on duty are responsible for the arrest as much as the arresting officer.

In many cases, a lawful arrest can be invalidated simply because the department policy selects certain offenses to be prioritized. Not every offense results in an arrest. Otherwise, enforcement of every infraction would soon spiral the department into a budgetary nightmare and department policies would then be driven by the lowest rank instead of the chief executive. 

Many times, an arrest may be deferred while a report of the incident is forwarded to prosecutors, who may decide on a different route of enforcement (grand jury, arrest warrant, etc.). Other reasons exist for a department head to set policies to enforce some laws or class of laws and to tolerate violations of others. While controversial, the department's policy may not be ignored in the chain of command.

It seems unlikely that any deputy serving under this sheriff would be unaware of Sheriff Finch’s position on the carriage of firearms by otherwise law-abiding persons. I suspect (but don’t know) that his position may have been rendered into official department policy and distributed to all subordinates. If this is so, then we are observing another instance of a subordinate attempting to defy a policy with which he or she disagrees. Such an action would (when reported by subordinates) set the forces of FDLE on an impossible mission to impose state law over this sheriff’s policy.

This event would then encapsulate no less an issue than local control over law enforcement. Can a state law that violates (in my opinion) a key provision of the Second Amendment of the U.S. Constitution force a sheriff, who swore to uphold that Constitution, to deny his Oath of Office?

Please notice that the Sheriff is charged with altering an arrest record. That is the only substance of the “official misconduct,” not the fact that he invalidated an arrest or took a stand on a Second Amendment issue.  "Official misconduct" is the leverage that allowed the governor to remove him. The frequent use of the Sheriff’s words “to uphold the Second Amendment” in the affidavit seem to indicate a particular disdain on the part of the affiant. 

Firstly, to substantiate the charge, the statute requires that the alteration of the record be accomplished, “with corrupt intent to obtain a benefit for any person or to cause harm to another.” Securing a citizen’s God-given rights, guaranteed by the Second Amendment, is not a “benefit.”  

Secondly, if there are not clear and written operating procedures for the common supervisory practice of invalidating an arrest which this accused sheriff is alleged to have disregarded, then the FDLE (IMHO) has no way to prosecute this (otherwise) routine supervisory action. Considering that a cursory reading of the arrest affidavit shows that arrest frequency in Liberty County is relatively low, detailed arrest procedures may be less than stringent.

In any case, the sheriff’s actions, standing alone, bear no relation to the severity of the actions taken by the State. Without this questionable charge, the governor had no legal grounds to suspend and replace Sheriff Finch and the showdown on the Second Amendment starts in Liberty County.

Story at Sunshine State News June 08

jim mcgovern/m912tc

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