Local cases involving gun charges are difficult to prosecute. Here’s why

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The legal age to carry a gun in Florida is 21 years old. Rifles and shotguns may be purchased by anyone who is 18 years old when they are law enforcement, a correctional officer or service member.

Some of the illegal guns on the streets of Central Florida are being used to shot and kill. And though in some cases people are being arrested, sometimes during traffic stops, or possession of a firearm, possession of a firearm by a convicted felon or delinquent, a 9 Investigates analysis found the cases are sometimes hard to prove and prosecutors are dropping the cases. Law enforcement has sent more illegal guns to the Florida Department of Law Enforcement crime lab in the last year for analysis, hoping that any evidence pulled can be used as part of a criminal case against suspects, but we found that single piece of evidence is  often not enough.

Last summer, a mother and daughter were at an Orange County home when bullets quickly pierced through their home. Investigators describe the mother as frantic, but her call to 911 was short, just long enough for dispatchers to get a callback number and address after the mother declared, “someone just shot up my house.”

The suspect now facing attempted murder charges was arrested before and after the incident for possession of a firearm by a convicted felon. However, the prosecutor did not file formal charges, citing a lack of evidence and ability to prove the case beyond a reasonable doubt. It’s a battle prosecutors across the state are up against.

“Trying to prove possession of a firearm where they’re not in actual possession, constructive possession is very difficult,” State Attorney Phil Archer told Investigative Reporter Daralene Jones.

People convicted of a felony in Florida are not allowed to possess firearms for any reason. When it comes to building a case for people who violate the law attorneys consider two types of possession, based on Florida law: constructive and actual.

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Constructive possession is the type of case in which prosecutors are often faced with when suspects are picked up during vehicle stops or sometimes even at their home. Actual possession is when the suspect is present with the gun or has it on their person. The penalty for those convicted is up to five years in prison or probation.

“The problem is if you catch a person with a firearm on them, those are pretty straight forward you know pretty easily filed and prosecuted. The problem is with most cases that involve, especially with juveniles and firearms is a situation where you stop a vehicle, there’s three or four occupants in a vehicle, there may be a firearm left in the car, find one along the path where they ran,” Archer said.

Archer, working alongside local law enforcement in Brevard County, re-invigorated a task force focused on combatting violent gun crimes, warning the area’s youth that they would be prosecuted as adults. “I got to tell you, across this country and even in this state there’s a lot of people that push back on that, say no you shouldn’t put a 16, 17 year old in the adult system. I will say, we’re very careful when we make that decision, but if you 16, 17 and use a firearm in a crime, you’re going to be charged as an adult,” Archer said.

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Scrolling through social media, it’s not difficult to find videos posted by juveniles in the community, some of them flashing what appears to be real guns. And that is frustrating for community advocates who know those in possession of these illegal guns are getting younger. Mulrain believes video games where players can perform virtually run around killing people plays a part. “They think that in real life, ‘I can get a kill,’ even in the music [rap video] you hear them talking about the video games,” Mulrain added. “As a young child growing up, if I’m 9, 10 years old and I see a 15-year-old with guns, and they look just like me, I might just comprehend because my mind’s not developed, that I might need to be like that. It becomes a cycle. It comes down to the parents, too, if your child is in that mix, we can’t look the other way,” Mulrain stated.

9-Investigates analyzed the final outcomes for cases labeled possession of a firearm and some lesser included from three circuits in Central Florida, covering nine counties: Orange, Osceola, Sumter, Hernando, Marion, Citrus, Lake, Brevard and Seminole.

That’s about 3,520 cases over three years dating back to 2018.  An estimated 20 to 50 -percent were not prosecuted or about 1,359 cases. Attorney David Bigney has defended some of the people arrested.

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“A lot of times people come into the office and they’re telling me what their defense is already. And it’s either they’ve been through it before or they know someone who’s been through it before. They know what the defenses are, and they just need someone to go in there to be their voice for them,” Bigney told Jones.

He acknowledged there is a benefit to law enforcement when they arrest people on the charge that may likely be dropped because of a lack of evidence.

“They’re getting the firearm off the street, so there’s an absolutely benefit to it, but I think that law enforcement also knows that they are going to be able to bond out right and the likelihood is that these constructive possession cases are ultimately going to get dropped,” Bigney stated.

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The FDLE crime lab in Orlando has seen an increase in the number of guns sent for analysis, relying on touch DNA to link the gun to a suspect. The crime technicians don’t routinely analyze guns in cases like this, so doing so, requires an exception to the rule. Overall, the office told us analysts tests evidence in about 5,000 cases per year, and a good percentage are guns.

“We are looking for skin cells left behind. We call that touch DNA. Every time you touch something, you’re leaving behind skin cells,” Chief of Forensics, Anthony Gorgone said.

That’s just one small piece of the evidence needed to put together an entire case for prosecution. Law enforcement is aware and has acknowledged the lack of eyewitnesses who are willing to come forward, some refusing to even provide a statement in gun violence cases, afraid of retaliation.

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“There’s a big misconception that when we test an item and we try to get those skin cells off of those items that we’re only getting the skin cells from the last person to touch the gun, or the item and that’s not necessarily true,” said Gorgone.

As of early May, Orlando officers alone have responded to 175 shootings since January, compared to 144 during the same time last year. Orange County told us its deputies have responded to 61 shooting since January of this year, though early May.

“To them a gun just kind of feels like pushing a button, but they don’t realize you’re taking a life and once that life is gone, you can’t come back from that and there are families, everybody is affected by that,” Mulrain said.

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