FLORIDA CARRY AND ALEXANDRIA LAINEZ, APPELLANTS,

V. UNIVERSITY OF NORTH FLORIDA AND JOHN DELANEY, APPELLEES

Case No.: 1D12-2174

Date: Dec. 10, 2013

Case type: University authority, right to bear arms

Court: First District Court of Appeal

Author of opinion: Judge L. Clayton Roberts

Lawyers for petitioners: Eric J. Friday, Lyman T. Fletcher and Michael R. Phillips, Fletcher & Phillips, Jacksonville

Lawyers for respondents: Paul R. Regensdorf, George E. Schultz, Jr., and Ben Z. Williamson, Holland & Knight, Jacksonville

Panel: Roberts, Chief Judge Joseph Lewis, Jr., and Judges James R. Wolf, Robert T. Benton II, Bradford L. Thomas, Lori S. Rowe, Ronald V. Swanson, Scott Makar, T. Kent Wetherell II, Simone Marstiller, Stephanie W. Ray and Timothy D. Osterhaus; Dissenting: Judges Philip J. Padovano, William A. Van Nortwick, Jr., and Nikki Ann Clark

Originating court: Duval Circuit Court

On Dec. 20 the president of the University of North Florida presented the academic community with a mixed blessing.

Effective immediately, students may store guns in their vehicles on campus, John Delaney announced in a statement. The university prohibited guns in cars on campus until the regulation was struck down Dec. 10 by the First District Court of Appeal.

With his announcement, Delaney hoisted the white flag of surrender. UNF will not try to convince the Florida Supreme Court to review and overturn the First District's 12-3 en banc ruling.

The match between pro- and anti-gun forces ended with a decisive win for the former. The First District's decision impacts all state universities, and probably all Florida colleges.

Florida Carry, a group of concealed-carry-permit holders, joined with member Alexandria Lainez to sue the university over the no-storage rule. Lainez, a UNF student, said she needs weapons of self-defense for her commute to the Jacksonville campus.

Now the question becomes how far the relaxation of campus gun rules will go. Eric Friday, the lead counsel for Florida Carry, suggested the next targets will be classrooms and dormitories.

"Numerous states are starting to allow carry into classes and dorms and in not one state where campus carry is allowed has there been a mass shooting," said Friday, with Fletcher & Phillips in Jacksonville.

DEFENSE OR PROTECTION?

He said the Dec. 13 shooting by a student at Arapahoe High School in Colorado "proved once again that the only way to stop a bad guy with a gun is a good guy with a gun. In this case it was a police officer, but police officers aren't always around." The victim of that shooting, 17-year-old Claire Davis, died on Dec. 21.

In his dissent to the First District majority decision, Judge Philip Padovano challenged the idea of universities stepping aside as students arm themselves.

"I believe that the University of North Florida had not only a right, but also a duty to adopt regulations such as the one before the court. It is fair to assume that most parents expect state universities to take responsible precautions to ensure the safety of their daughters and sons while they are in school," Padovano wrote, joined by Judges William Van Nortwick and Nikki Ann Clark.

"This regulation was plainly designed as a safety measure."

A STATUTORY SOLUTION

The case took an unusual procedural route. In Duval Circuit Court, Florida Carry and Lainez demanded damages or a fine, a declaration that UNF's regulation was invalid and an injunction prohibiting its enforcement.

A statutory battle ensued. In its motion to dismiss, UNF argued it's allowed to regulate firearms storage on school property. State law permits guns on campuses only when they are secured in vehicles, but "school districts" can waive that exception to the general prohibition.

Florida Carry contended that UNF is not a school district, a term exclusive to public grade schools, and therefore it can't waive the exception.

The trial judge granted the motion to dismiss, reasoning that the Legislature broadly defined the term "school district" to cover public universities.

Before oral argument at the First District, a three-judge panel told both sides to prepare answers to three questions, including one that brought the Florida Constitution into play: Does Article IX, Section 7 give a state university independent authority to regulate the possession of firearms on campus?

Rather than leaving the case with the three-judge panel—the usual approach—the entire 15-member court swooped in to determine the outcome.

The court produced seven separate opinions, including the dissent, with the majority drawing eight votes. Five judges drafted concurrences, while four joined an opinion offering different reasons, but agreeing with the majority result.

TIPSY COACHMAN

The internal debate was all about whether statutory or constitutional law controls. Is the Legislature the ultimate arbiter of the right to bear arms in Florida, or does the state constitution grant that authority to universities when it comes to regulating guns on campuses?

"The real contest here is between the constitutional provision the right to keep and bear arms, and the constitutional provision to operate and manage, control and be fully responsible for universities," said Robin Gibson. Gibson, of the Gibson Law Firm in Lake Wales, represented former-Gov. Bob Graham in Graham v. Haridopolos, a 2013 Florida Supreme Court decision the panel cited for the constitutional question it put to the lawyers.

But according to most of the First District judges, there was no balancing issue to address and the Legislature's assumption of the entire playing field made the outcome a slam dunk.

"The legislature's primacy in firearms regulation derives directly from the Florida Constitution," Judge L. Clayton Roberts wrote for the majority. The opinion bows to students' "constitutional right to bear arms as provided by organic law and legislative enactment."

Padovano, the dissenter, said that while the trial court's statute-based analysis was incorrect, the judgment should be affirmed because of the "tipsy coachman" rule: "a decision by a trial court must be affirmed if it is correct for any reason that is supported by the record."

In other words, the coachman may be drunk, but he's heading in the right direction.

"The order under review … should be affirmed on the ground that the university had independent constitutional authority to adopt the regulation," Padovano wrote.

Now that the university has laid down its arms, the issue is moot. No one knows where the coachman is headed.