99% Chance That This Florida Attorney General’s Brief Was Filed by Someone Not Licensed to Practice Law

Mr. Volokh, you had me at Florida. 

Odd, you say — wouldn't it be pretty likely that whoever is signing the brief is likely licensed to do so? Well, I can prove it: Less than 1% of the Florida population is licensed to practice law. Thus, given the small percentage of the population that is licensed to practice law, the overwhelming majority of briefs are not licensed. Thus, my suspicion that the brief was signed by someone who isn't licensed would be reasonable because, in any given case, there would be, statistically speaking, a 99% likelihood of unauthorized practice of law.

Nonsense!, you say. Nonsense indeed — yet it is the argument that the Florida Attorney General made with regard to licenses to carry concealed firearms.

The legal question was when a police officer who has reasonable suspicion that a person is carrying a concealed firearm is entitled to briefly detain and frisk the person. Generally, reasonable suspicion that a person is committing a crime suffices to justify the brief detention, and — once the stop takes place — reasonable suspicion that the person is armed and dangerous suffices to justify the frisk. But concealed carrying with a license is legal, though whether or not the person has a license generally can't be determined until he's stopped.

May the police officer act on the assumption that it's sufficiently likely (though far from certain) that someone who he suspects is carrying a gun doesn't have a license? Should it matter whether a license is an affirmative defense to the crime of carrying a concealed weapon, as opposed to the absence of a license being an element of the crime of carrying an unlicensed concealed weapon? It's a complicated, interesting, and unsettled question.

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