It’s always dicey to go out on a limb against internet groupthink. It’s even ‘dicier’ to write in opposition to a verdict which has the Second Amendment folks and most of the defense lawyer community applauding. I love my defense attorney brethren and I love me some guns as well. I am not joking here: working with my fellow defense lawyers is one of the best parts of my career. I also own so many guns it’s hard to count them in my head sometimes. However, there’s something that doesn’t sit well with me and the case of Liberty County Sheriff Nick Finch.
The backstory is found here: http://www.wctv.tv/home/headlines/Reinstated-Sheriff-Speaks–230929941.html#.UnuKrMQdwEY.twitter
-or more thoroughly-
A small county Sheriff, the elected Sheriff, walked an arrestee out of jail and released him after meeting with the arrestee’s family and deciding his deputy’s arrest wasn’t worth the trouble. Reports indicated that the Office of the State Attorney never even knew about the arrest until after someone apparently dimed-out Finch and the investigation got rolling. The State claims that the Sheriff destroyed the jail log which had theretofore memorialized the arrest.
There is little argument that the arrestee had violated the law. There is little argument that the Florida in this matter law is confusing or that the law has shifted over the past two decades. Had the arrest been for DUI or Possession of Cannabis the story would have promptly ended there with the Sheriff’s suspension and probably a plea agreement.
But the arrest at issue was made for carrying a concealed firearm. Finch was able to therefore claim that his actions were related to the hot button issue of rural gun ownership in a changing political landscape.
The elected sheriff was charged with falsifying records and he wisely retained two fine criminal defense lawyers from Tallahassee. The case proceeded to trial. The claimed defense at trial was that Finch’s adherence to strict Second Amendment principles allowed him to forgive his deputy’s arrest. The defense also claimed that the evidence was insufficient to support the claims Finch destroyed or altered records in the case. (Disclaimer: I have no personal involvement with the Nick Finch case and only know what I know about the case from reading the reports – a severe handicap).
The jury sided with Finch and returned a verdict of not guilty. Soon thereafter Finch was reinstated by Governor Rick Scott. Recently, Finch has come forward to make statements about his case and his philosophy moving forward. (first link above)
My concerns aren’t wholly with Finch’s defense but instead lie with Finch’s statements about how he views the role of an elected sheriff.
First of all, I’d hope we all can agree that there is a place for changing the law and that it is in the electorate process – not on an ad hoc basis. If Floridians are going to be subjected to stupid laws that nobody follows, we should change the laws and not rely on save law enforcement professionals to selectively enforce the laws to our benefit when the chips are down.
The underlying premise of Finch’s case is that his Second Amendment principles took over and that is what led to him “un-doing” the arrest. As a second matter of concern, I can’t help but feel like this “get out of jail free” card wasn’t simply a small county favor performed based on some prior relationship with the arrestee or the arrestee’s family. I am not 100% sold that this release was a principled, calculated, defiant act. In selling the improper release to the masses, it’s probably dispositive for Finch that the arrest was for a carrying a concealed firearm charge and not some other third degree felony such as Possession of Cocaine.
Thirdly, going forward, Finch is claiming that law abiding citizens in Liberty County do not need to fear arrest for firearms charges. My question would be – who gets to make that decision? If I am a visiting hunter from a neighboring county I might not be able to contact Sheriff Finch and therefore could well, upon arrest, be subjected to actual prosecution when one of Finch’s golfing buddies gets released. Nobody in my family has Finch’s number in his or her phone. Is that what is going to separate the released arrestees from those who are led out of the jail? How will future decisions break when viewed in light of Finch supporters versus supporters of any future challenger for the office? How will these decisions break along racial lines? How can our democracy manage a Sheriff who is going to direct the enforcement of Florida Statutes on an ad hoc basis pursuant to his own, undefined code of lawful activity? Florida Statutes, implemented pursuant to the democratic process, are in place to prevent this type of disparity in the criminal process.
I applaud the good work of Finch’s defense lawyers. They obtained a Not Guilty in the face of what seemed like faltering evidence. This is what defense lawyers are supposed to do and they certainly performed marvelously on behalf of their client.
However the casting of Sheriff Nick Finch as a Second Amendment hero and principled law enforcement professional seems like a stretch. The release of the arrestee reeks of a small county favor. Finch’s Second Amendment advocacy would have been more appropriately served in the legislative process (where Florida Sheriffs enjoy unparalleled legislative input). Going forward, there is apparently a small county in Florida where the “thou shall not” provisions of Florida statutes are going to be subject to individual review. It remains to be seen whether or not that is a positive development.