By William Hladky, BrowardBulldog.org
An apparent misreading of state law by the Fort Lauderdale Police has kept officers from enforcing a Broward County ordinance that requires criminal background checks on gun buyers at gun shows.
Two legal experts have told BrowardBulldog.org that the police department is wrong to believe that a state statute enacted last year invalidates the county background checks ordinance. Similarly, the Hillsborough County Attorney said in a memo this month that his county continues to have the “authority to require criminal background checks.”
The 1998 Broward county ordinance says criminal background checks must be done on gun buyers when sales occur “on property to which the public has a right of access.” A violation is a misdemeanor.
But Fort Lauderdale Police spokeswoman Det. DeAnna Greenlaw said the county ordinance no longer is in effect due to Florida Statute 790.33, enacted in 2011. That statute declares any city or county ordinance that regulates gun possession and sales “null and void.”
The Fort Lauderdale Police Department’s legal position is important. Broward’s two largest gun shows, sponsored by Ohio-based Suncoast Gun Shows and North Lauderdale’s Trader Ritch, are held in Fort Lauderdale.
Legal experts say the city’s legal interpretation is wrong. They say the law the city cites is trumped by an amendment to Florida’s Constitution, passed by voters in 1998, that gives counties the option to enact background check ordinances like Broward’s.
“Each county shall have the authority to require a criminal history records check…in connection with the sale of any firearm…when any part of the transaction is conducted on property to which the public has the right of access,” the amendment says.
‘POLICE HAVE IT WRONG’
Robert Jarvis, a Constitutional Law Professor at Nova Southeastern University, explained that the null-and-void statute has no impact on the county’s ordinance because it is rooted in the state constitution.
“A statute cannot nullify a Constitutional vision,” Jarvis said. “I think the police have it wrong.”
“You have a right to bear arms, but the state has a right to regulate,” Jarvis said. “When it comes to the Second Amendment, to firearms, a lot of misinterpretation and misinformation exists.”
Andrew McClurg, a firearms policy expert and law professor at the University of Memphis, agreed.
Jarvis “is certainly correct that a constitution trumps a statute. That’s a basic principle of constitutional law,” said McClurg, adding that the amendment appears to grant Florida’s counties the authority to enact background check ordinances.
The profile of Broward’s ordinance may rise with the U.S. Senate’s recent defeat of efforts to close loopholes and strengthen the federal background check law for gun buyers.
Mayor Jack Seiler
Broward State Attorney’s spokesman Ron Ishoy said in an email that his office was unable to find “any time where a law enforcement agency in Broward has brought us a case involving Broward County ordinance sec. 18-97.”
Nevertheless, Fort Lauderdale Mayor John P. “Jack” Seiler said in an interview that his city is enforcing the background check ordinance through another state statute, 790.065, regarding “the sale and delivery of firearms.”
However, that law only addresses the need for licensed gun dealers to conduct background checks. It does not address the issue of background checks for buyers who buy guns from non-licensed gun dealers, including those at gun shows.
The broader language of Broward’s ordinance covers non-licensed gun dealers. So, unless the buyer is exempt, it requires a buyer who purchases a gun from anybody at a public location to undergo a background check.
The Florida Constitution, state law and the county ordinance exempt from background checks gun buyers who are law enforcement officers or concealed weapons permit holders.
POLICE INTERPRET LAW
Fort Lauderdale Police Chief Frank Adderley expressed a similar, apparently mistaken, opinion about the state law’s application.
“Everything in the county ordinance is included in the state statute…That is our interpretation,” said Adderley, citing legal counsel. Attorney Bradley H. Weissman is the department’s legal advisor.
Police Chief Frank Adderley
“He’s interpreting it wrong,” said Nova Southeastern’s Jarvis. “The state statute does not touch on the issue which is addressed in the ordinance.”
Representatives of the Suncoast Gun Show, which holds shows at the War Memorial Auditorium, did not respond to several requests for comment about the ordinance and its background check practices. Its next gun shows at the auditorium are scheduled for May 4 and 5 and June 15 and 16.
Ritch Cecilio and Jim Hayden sponsor gun and knife shows in Broward County. They say they avoid violating the ordinance by requiring their gun buyers to have a Florida conceal weapons permit.
Cecilio requires a gun buyer at his shows to present a Florida driver’s license as well as a carrying permit because he is “trying to eliminate the possibility that anyone not supposed to have a gun gets a gun.” If a dealer or collector does not follow this rule, Cecilio says he will oust him from the show.
Hayden said a permit guarantees that person has been fingerprinted. A buyer who doesn’t have a permit must buy his gun through a licensed dealer who must order a background check and cannot deliver it until after a five-day waiting period, he said.
Cecilio, who operates as Trader Ritch, sponsors a show the first Sunday of every month at the Universal Palms Hotel, 4900 Powerline Road, Fort Lauderdale. Hayden’s Oakland Park Gun and Knife Show happens about every other month at American Legion #222, at 4250 NE 5 Ave., Oakland Park. His next show is May 19.
Licensed gun dealers in Florida are required to do background checks through the Florida Department of Law Enforcement whenever they sell a gun. The checks are required wherever the sale is made.
In counties without a background check ordinance, civilians or collectors are not required to do background checks at gun shows or other public locations.
It is not known if promoters at the large Suncoast shows require gun buyers to have concealed weapons permits.
Mayor Seiler says that after the Sandy Hook Elementary School student massacre he contacted City Manager Lee Feldman, Adderley and the city attorney’s office to discuss enforcing gun laws in the city.
“I support stricter background checks…We have a very strong law enforcement presence at gun shows and we are working with multiple agencies at the state and federal level to enforce our gun laws,” the mayor said.
Gun sales between civilians at non-public locations are not subject to background checks. So it is often the case that gun purchases are discussed inside gun shows but are actually sold outside in the parking lot, said Hamilton Bobb, retired Assistant Agent in Charge of the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives in Miami.
“It is a big issue. It happens at every gun show,” Bobb said.
The Sun Sentinel reported that private dealers violated city law in during a gun show in January when they openly sold guns and ammunition outside Fort Lauderdale’s War Memorial Auditorium in Holiday Park. The city’s ordinance prohibits the sale of weapons in parks.
The Tampa Bay Times reported earlier this month that seven counties, representing 45 percent of Florida’s population, have background check ordinances similar to Broward’s. The newspaper reported the ordinances have been ineffective because of inconvenience, lack of public concern and misunderstanding of state law.
By Dan Christensen, BrowardBulldog.org
A Fort Lauderdale Police internal inquiry into the out-of-state arrest of a street crimes unit sergeant did not follow departmental procedures for conducting such investigations.
Internal Affairs guidelines say investigators should obtain and review police reports, probable cause affidavits, booking sheets and other information about such incidents. Sworn statements are to be taken from witnesses, including the accused officer, “as soon as possible.”
None of that was done after Sgt. Jerald Fuller was arrested on July 19, 2009 when police were called to a “disturbance” at a private home in Somerset, New York.
Departmental rules also state that completed Internal Affairs investigations are to be submitted for review to both an assistant police chief and the chief of police.
Police files do not indicate that was done either.
As Broward Bulldog reported on May 24, Fuller’s arrest was erased from an Internal Affairs report maintained in a police database. The purged report was later released to comply with a Public Records Act request by the Broward Public Defender’s Office.
It can be a crime in Florida to alter a public record, whether a paper report or an electronic database. But state prosecutors declined to investigate, drawing a rebuke from Public Defender Howard Finkelstein, who had asked for a state inquiry.
Copies of the original and changed versions of the report were leaked to one of Finkelstein’s investigators in February. The Public Defender’s Office soon requested the Internal Affairs report from police to defend a suspect arrested by city police.
POLICE ACKNOWLEDGE PURGE
Police Captain Rick Maglione has acknowledged changing the report when he headed Internal Affairs.
He explained he did so to comply with a New York municipal judge’s orders that had dismissed and sealed the case four days after Fuller’s arrest. He did not include that explanation in the file.
Maglione also told Broward Bulldog that he did not seek to obtain New York police or court records to verify the facts surrounding Fuller’s arrest because those documents were “not obtainable” due to the judge’s sealing order.
New York criminal procedure, however, allows both the person accused and police agencies access to sealed records.
Captain Rick Maglione
Maglione said he relied on assurances he got from Fuller’s New York lawyer, George Muscato, and an official he did not identify in the Niagara County, Somerset Town Court, District Attorney’s office
“Everything I had was self-reported (by Sgt. Fuller). I was satisfied with that because I was also assured no crime had occurred,” said Maglione, who is now a top aide to Chief Frank Adderley.
VETERAN COP AND A DISTURBANCE
Fuller is a 19-year veteran and member of the police department’s controversial Northwest Raiders drug unit. He notified his superiors of his arrest.
In his two-paragraph report dated August 10, 2009, Maglione, a former Raider, identifies himself as both the investigator and supervisor on the Fuller inquiry.
It states that a neighbor called the police about a disturbance at a local residence involving Fuller, his brother “and another individual known to the Fuller family.”
“It was initially determined that Sergeant Fuller and his brother were responsible for some minor damage to the other individual’s property,” Maglione wrote.
Basic information such as the address where Fuller was arrested, the time of day of the incident, a description of the damage, and even the criminal charge lodged against him are not included in Maglione’s report.
By Dan Christensen, BrowardBulldog.org
Original I.A. report states "Officer was arrested," left. Revised version, right. Click to enlarge.
The Broward State Attorney’s refusal to pursue a Fort Lauderdale Police Internal Affairs report that was purged of information about an officer’s arrest has drawn the ire of Public Defender Howard Finkelstein.
Finkelstein asserts that the police broke Florida public records law when the head of Internal Affairs changed a police database to delete any mention of the out-of-state arrest of Sgt. Jerald Fuller.
Fuller had been arrested in New York in connection with a dispute involving property damage. A New York municipal judge dismissed the case and sealed the court file four days after Fuller’s July 19, 2009 arrest.
Fort Lauderdale Police Capt. Rick Maglione, who left Internal Affairs in 2011, says he removed the arrest information to comply with the judge’s order.
It can be a crime in Florida to falsify or alter a public record, whether a paper report or an electronic database. So when a tipster alerted the Public Defender’s Office in February to what was done, a request was made for State Attorney Michael Satz’s public corruption unit to investigate.
Assistant State Attorney Tim Donnelly said last week that he spoke with Maglione and determined no investigation was necessary.
“There is no crime in editing your own document,” Donnelly told Broward Bulldog. “It’s not a public record. It’s like a Word document.”
Finkelstein is not happy with Donnelly’s conclusion.
“Despite direct evidence that a police captain, while conducting an Internal Affairs investigation, altered a report to conceal the fact that a police officer was arrested, your office has found nothing wrong nor even found the need to investigate,” Finkelstein said in a recent letter to Satz.
In an interview, Finkelstein added, “The public record is not a work of fiction, but that’s what happened here….It was creative writing to make it appear that what happened didn’t really happen. If it isn’t illegal, it is certainly unethical.”
Public Defender Howard Finkelstein
SERGEANT DISCLOSED ARREST
Fuller, a supervisor with the city’s controversial anti-drug unit known as the Northwest Raiders, disclosed his arrest to superiors. Details, however, are sketchy. Not only is the New York court file sealed, Maglione did not obtain – or request – a copy of the New York police report describing what happened. New York law allows police agencies access to sealed cases.
“Everything I had was self-reported” by Fuller, said Maglione, a former Raider. “I was satisfied with that because I was also assured (by Fuller’s New York lawyer and an unnamed local district attorney) that no crime occurred.”
Maglione’s account, based solely on what Fuller told him, states that Fuller was on vacation in Niagara County, N.Y. on July 19, 2009 when “he became involved in a disturbance at a privately-owned residence.” Fuller, a 19-year-veteran, was with his brother “and another individual known to the Fuller family, the report says.
“The disturbance prompted a neighbor to contact the local police and it was initially determined that Sergeant Fuller and his brother were responsible for some minor damage to the other individual’s property, but any contemplated charges were subsequently dismissed once it was determined that no crime occurred,” the report says.
Maglione’s report does not say what crime Fuller was charged with, provide the location and time of the incident, describe the damage or say what police agency investigated. It also does not mention that one or two other persons were arrested.
Likewise, the police file includes no notation that the report was altered because of New York law. The department’s software system, IAPro, also does not track such changes. “It overwrites the first entry entirely,” Maglione said.
Maglione, now a top aide to Chief Frank Adderley, says he deleted the arrest information in an update before finalizing his report in August 2009. But Al Smith, Finkelstein’s chief investigator, said he determined the alterations were actually made about a year later. During that time, he said, the cleaned-up version was sent out in response to several requests for information about Fuller.
The arrests occurred on a Sunday. By the end of business Thursday, the case was dismissed and sealed by Somerset Town Court Justice Donald P. Martineck.
A few days later, Fuller presented Maglione with a letter from his attorneys, George Muscato and Michael H. White Jr., declaring that “all charges” had been dismissed and that complainant Clayton Cooper had signed a document stating “he did not want to pursue any further charges” and, in fact, had never wanted “to bring charges in the first place.”
Cooper is not further identified. A 78-year-old man with the same name who resided in a small home in the tiny town of Barker, which is surrounded by Somerset, N.Y, died in September 2010.
CLOSED CASE COMES BACK
Maglione closed Fort Lauderdale’s Internal Affairs investigation on August 10, 2009. He did so, he said, without obtaining a police report to verify what Fuller had told him. A signed hard copy of his report, sans mention of the arrest, is included in the file. Case closed, he said.
Captain Rick Maglione
But two and a half years later, on February 1, 2012, investigator Smith, a former Fort Lauderdale police detective, received at his home copies of two nearly identical internal Affairs reports about the New York incident. The second, as Smith put it in his referral to prosecutors, was “sanitized” to omit the fact of Fuller’s arrest.
The Public Defender’s Office filed a public records request seeking Fuller’s file because he is a witness against a client. The police coughed up the version of the report that does not mention that he was arrested.
Police legal advisor Bradley Weissman now says it was a mistake for police to release even the censored report because of the blanket sealing order.
“I believe we made an error when we turned it over,” Weissman said. Still, Florida’s broad public records law requires such records to be open to the public.
Fuller’s Fort Lauderdale attorney, Michael Gottlieb, is upset that someone leaked Internal Affairs records about his client. He said he suspects it was done by “somebody in internal affairs who wanted to get somebody else in trouble and who thought this case was improperly closed or that favoritism was shown.” He declined to name names.
A MATTER OF CONCERN
While prosecutors have brushed the matter off, Finkelstein’s letter to Satz calls it a matter of “great concern” because defense counsel rely on information in Internal Affairs files to locate information they can use to impeach the testimony of officers who are witnesses against their clients.
The disagreement is part of long-running legal spat between Satz and Finkelstein about pre-trial disclosure by prosecutors. For nearly 50 years, courts have required prosecutors to turn over so-called Brady evidence – information favorable to a defendant.
Satz has said his disclosure policy “far exceeds” his legal obligations under Brady. Finkelstein counters that Broward prosecutors tend to withhold too much potentially favorable evidence and have little interest in enforcing Brady requirements when it comes to the police. He cited that concern in his letter to Satz.
“The failure to address this incident evidences the double standard your office employs when police misbehavior is at issue,” Finkelstein said.