Florida Carry wins lawsuit against Daytona Beach for illegally withholding veteran’s guns

A Florida case finalized today sets a great precedent for veterans and their firearms.

“AB” was a Daytona Beach resident who served in the Army from 2004 to 2010.

His service included a tour in Iraq, according to a court order issued Monday.

AB now lives in Texas.

In December 2012, three days before Christmas, AB called a national veterans’ crisis line seeking help.

He sounded intoxicated and told the counselor he was armed, suffered from PTSD and a traumatic brain injury and said he was “one bad moment away from killing himself.”

The counselor called the Daytona Beach Police Department who, around 2 a.m., responded to his home.

Several of the officers were veterans themselves, the court documents state.

AB walked out of his home, met with the officers and was taken into custody for an involuntary mental health exam — a process known in Florida as a Baker Act.

As police were securing his home, they found 16 firearms, bows and arrows, ammunition and a “combat vest.” The weapons were laid out on his bed. AB later testified that he had cleaned his firearms that day.

AB was released two days later, returned home and found that his firearms were missing.

He called police about his firearms, and a Daytona Beach Police supervisor told the veteran he’d have to “fill out some paperwork” to get his guns back, but that a relative would have to pick up the forms.

AB’s cousin picked up the forms the next day — documents called “SWORN AFFIDAVITS.”

The documents stated, in bold type, that Florida law forbids transfer of any dangerous weapons to a person with an “unsound mind.”

The affidavits contained 24 questions. The DBPD requires a relative to fill out one form, and a “mental health professional” was needed to complete another.

AB met with a licensed counselor six times — at $80 per visit — for more than two months.

Court documents show that the counselor noted he never “perceived or concluded that AB was ‘infirm in mind, insane or essentially deprived of the faculty of reasoning.'” He also concluded AB had “no intent to harm himself or others,” and that AB did not “meet the criteria for involuntary treatment.”

AB returned the affidavits to the DBPD on March 14, 2013.

He called the department the next day and was told a city attorney needed to review the documents.

He called the police department a week later and was then told he’d need a court order to get his guns back.

Florida Carry Inc. filed suit May 22, 2013 on AB’s behalf, seeking to get his guns back.

On August 12, 2013, a judge ordered the police department to return all of AB’s property.

Immediately after the hearing, AB and his attorney went to the police department where they were met by former-Daytona Beach Police Chief Michael Chitwood.

AB’s guns were piled onto a two-deck cart.

There were depressions in the stocks of some of the weapons, due to improper handling and storage, and rust and pitting on several gun barrels.

“AB testified that every firearm was damaged with the exception of an AR-15, which was not immediately brought to him until he called its absence to the evidence technician’s attention,” the court documents state. “AB also states that the trauma shears in his combat vest, as well as an iPod kept in the vest were missing.”

Scott Whigham, a founding director and corporate officer of Florida Carry, testified that the pro-gun group got involved in the case because “it’s members believe that their right to bear arms is adversely affected by the City’s process of requiring a court order to return firearms to someone who has been involuntarily examined.”

Whigham also pointed out that many Florida Carry members are veterans, and that “part of the membership’s concern about AB’s situation is that members who are veterans may now hesitate or avoid seeking mental health services out of fear of losing their firearms.”

In his final order issued Monday, Circuit Judge Michael Orfinger found that The City of Daytona Beach’s policies requiring people who have been Baker Acted to use “sworn affidavits” and court orders in order to obtain their seized firearms was an “impermissible measure or policy.”

The judge ordered the city to pay for the $527 cost of repairing one of AB’s firearms, $15 for his missing trauma sheers, and $360 for his counseling session, a total of $1,087.

The judge also concluded that the city’s policy of requiring affidavits violated Florida’s preemption statute.

The court ruled that “neither the city nor any of its agencies may retain firearms or ammunition confiscated from that person following that person’s release from the examining facility.”

The judge also awarded Florida Carry unspecified attorney’s fees and court costs.

“Florida Carry is extremely pleased with Judge Orfinger’s decision in this case. Having attended the two days of testimony, it was obvious that Judge Orfinger was very concerned over the violation of AB’s rights, and the incongruence of the preemption statute,” Whigham told me Monday. “His determination to ‘get it right’ prevailed. It is Florida Carry’s hope that other municipalities and state agencies will take notice and cease to violate the 2nd Amendment rights of it’s residents. It is also our hope that the Legislature will take note of Judge Orfinger’s concerns and work to clarify ambiguities in the statute.”

Kudos, Florida Carry!

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About Author

Lee Williams can’t remember a time in his life when he wasn’t shooting. Before becoming a journalist, Lee served in the Army and worked as a police officer. He’s earned more than a dozen journalism awards as a reporter, and three medals of valor as a cop. He is an NRA-certified law enforcement firearms instructor, an avid tactical shooter and a training junkie. When he’s not busy as a senior investigative reporter, he is usually shooting his AKs, XDs and CZs. If you don’t run into him at a local gun range, you can reach him at 941.284.8553, by email, or by regular mail to 1777 Main St., Sarasota, FL 34236. You can follow him on Twitter: @HT_GunWriter and on Facebook @The Gun Writer.

2 Comments

  1. Great ending and one that makes me smile. I think the issue of vets being reluctant to seek counseling because of the chance they will have their Second Amendment Rights violated is greater than people realize. And to be honest, after working as a probation officer for several years and gaining an understanding of the general evidence policy and procedures the police follow, it’s unlikely that any confiscated property is ever returned in the same condition it was when seized.

  2. Although this incident ended happily except for the aggravation to the innocent veteran, the Florida legislature needs to repeal the Baker Act and other states with similar abominations need to get rid of theirs.

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