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

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.

But here’s the Florida Attorney General’s answer to it, in the brief in Mackey v. State (filed Oct. 4, 2012:

Given the small percentage of the population [about 5%] that is licensed to carry a concealed firearm, the overwhelming majority of firearms, or 95%, are not licensed to be concealed. Thus, an officer’s suspicion that a firearm is not licensed would be reasonable because, in any given case, there would be, statistically speaking, a 95% likelihood of illegality.

Of course, this isn’t right, for the same reason that the assertion in the title of this post isn’t right. If people completely don’t care about the law, and are unmoved by either its deterrent or norm-setting force — a strange theory for the attorney general’s office to endorse — then indeed a licensure rate of 5% means a 95% likelihood that each carrier is carrying illegally. (If the population is, say, 20 million, 1 million are licensed, 10% of the licensed and 10% of the unlicensed are carrying at any given time, then we have 2 million people now carrying, of whom 100,000 are licensed and 1,900,000 are unlicensed.)

If people completely comply with the law, then despite a licensure rate of 5%, there’s a 0% likelihood that each carrier is carrying illegally. This is probably close to what happens in the brief-filing hypothetical, since presumably nearly everyone who is filing a brief on behalf of the AG’s office is licensed to practice law.

If people comply with the law at some rate in between, such that, for instance, 5% of people who lack a license nonetheless carry concealed without a license, and they do so as often as do people who have a license, then the probability that any given carrier is carrying illegally would be somewhere between 0 and 95%. With the 5% hypothetical, it would be roughly 50%: If the population is 20 million, 1 million are licensed, a bit under 1 million are unlicensed but still carry, so that if 10% of the licensed and 10% of the unlicensed are carrying at any given time, then we have about 200,000 people now carrying, of whom 100,000 are licensed and about 100,000 are unlicensed. If 5% of people who lack a license nonetheless tend to carry concealed without a license, but do so for only 20% of the time that licensed carriers carry (so in our hypo at any time there are 100,000 licensed people carrying and about 20,000 unlicensed people carrying), then the probability that any given carrier is carrying illegally is about 16%.

But you can’t tell what is “in any given case, … statistically speaking, … [the] likelihood of illegality” until you first figure out what fraction of the unlicensed carriers are carrying despite not having a license — something the brief didn’t (and likely couldn’t) do. This doesn’t mean the brief’s bottom-line answer is wrong; as I mentioned above, the underlying Fourth Amendment question is interesting and not clearly resolved. It’s just that the 95% argument is about as sound as the claim in the title of this post.

Thanks to All Nine Yards for the pointer.