Saturday, October 29, 2016

Another bill for consideration in the 2017 Legislature amending F.S. 790.115

The 2017 Legislative session is less than three months away, and once the November elections are over legislators will begin to decide what new bills they will file, and what they will back or oppose.
I've suggested a few ideas that I think are sorely needed, and that also would have an excellent chance of getting passed in the upcoming session.  I've kept my suggestions away from ideas that I like, but I don't think will make it -- at least this year.   However,  Florida Statute 790.115 is a statute that is crying out for reform.  Here are my reasons for proposing this being amended, and my suggested changes:


PROPOSED AMENDMENT TO F.S. 790.115

WHY IS AN AMENDMENT NEEDED:

F.S. 790.115 restricts possession of firearms and other weapons on school property, however, there is an exception in subsection (2)(a)(3) that allows “securely encased” possession in a vehicle.  Unfortunately, the Legislature added to that paragraph a further exception that allowed school districts, on a piecemeal basis,  to pass written policies forbidding weapons in vehicles on the grounds of such schools regardless of need, and without any guidelines.

The section was likely directed at allowing school districts to curtail “students” from parking with weapons and firearms – but its language appears inclusive of “anybody”.  Plus, there are no guidelines on why a school should implement such a policy.   This has led to a severe hardship for many teachers, administrators, and parents dropping off and picking up students – especially if their drive is a long one in rural areas.  Moreover, it affects adults with CWL’s going to late night vocational schools, and adult education, and is a hardship to any of these individuals, as well as faculty and administrators working late hours.    Likewise, there is no exception when the school is used as a shelter during a declared emergency, or an exception that would allow those individuals who are qualified as armed security personnel under Chapter 493 to be hired to carry and protect on school grounds – especially private schools and church schools who are seeking this type of assistance, and don’t have access to assigned police officers.

The following amendment would cure all these problems, and still keep the original intent of the Legislature.  Current language that is eliminated is struck out, and new language I’ve suggested is underlined:

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A bill to be entitled:

An act related to the possession and display of firearms and weapons at schools and on school grounds.

Be it enacted by the Legislature of the State of Florida

Subsections (2)(a); (2)(a)(3); and (3),  of section 790.115
Florida Statutes, are amended, and subparagraph (2)(a)(4) is added,  to read:

790.115 Possessing or discharging weapons or firearms at a school-sponsored event or on school property prohibited; penalties; exceptions.—

(1) A person who exhibits any sword, sword cane, firearm, electric weapon or device, destructive device, or other weapon as defined in s. 790.001(13), including a razor blade, box cutter, or common pocketknife, except as authorized in support of school-sanctioned activities, in the presence of one or more persons in a rude, careless, angry, or threatening manner and not in lawful self-defense, at a school-sponsored event or on the grounds or facilities of any school, school bus, or school bus stop, or within 1,000 feet of the real property that comprises a public or private elementary school, middle school, or secondary school, during school hours or during the time of a sanctioned school activity, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. This subsection does not apply to the exhibition of a firearm or weapon on private real property within 1,000 feet of a school by the owner of such property or by a person whose presence on such property has been authorized, licensed, or invited by the owner.


(2)(a) A person shall not possess any firearm, electric weapon or device, destructive device, or other weapon as defined in s. 790.001(13), including a razor blade or box cutter, except as authorized in support of school-sanctioned activities, at a school-sponsored event or on the property of any school, school bus, or school bus stop; however, a person may carry a firearms or other weapons:

1. In a case to a firearms program, class or function which has been approved in advance by the principal or chief administrative officer of the school as a program or class to which firearms could be carried;


2. In a case to a career center having a firearms training range; or

3.  In a vehicle pursuant to s. 790.25(5); except that school districts may adopt written and published policies that waive the exception in this subparagraph for purposes of student and campus parking privileges  any firearm, ammunition, or other weapon shall be placed out of sight, and if the vehicle is unattended all doors shall be locked, and all windows and other openings that provide access to the interior of the vehicle for a driver or passenger shall be fully closed.  Furthermore, except for students 21 years of age or older, or those with a valid concealed weapons license, a school district may adopt written and published policies that waive the exception in this subparagraph for purposes of student parking privileges.

For the purposes of this section, “school” means any preschool, elementary school, middle school, junior high school, secondary school, career center, or postsecondary school, whether public or nonpublic.

4. Pursuant to s.  790.01(3)(a) on the grounds or within any school being used in whole or part, as a shelter.

(b) A person who willfully and knowingly possesses any electric weapon or device, destructive device, or other weapon as defined in s. 790.001(13), including a razor blade or box cutter, except as authorized in support of school-sanctioned activities, in violation of this subsection commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(c)1. A person who willfully and knowingly possesses any firearm in violation of this subsection commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

2. A person who stores or leaves a loaded firearm within the reach or easy access of a minor who obtains the firearm and commits a violation of subparagraph 1. commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083; except that this does not apply if the firearm was stored or left in a securely locked box or container or in a location which a reasonable person would have believed to be secure, or was securely locked with a firearm-mounted push-button combination lock or a trigger lock; if the minor obtains the firearm as a result of an unlawful entry by any person; or to members of the Armed Forces, National Guard, or State Militia, or to police or other law enforcement officers, with respect to firearm possession by a minor which occurs during or incidental to the performance of their official duties.

(d) A person who discharges any weapon or firearm while in violation of paragraph (a), unless discharged for lawful defense of himself or herself or another or for a lawful purpose, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(e) The penalties of this subsection shall not apply to persons licensed under s. 790.06. Persons licensed under s. 790.06 shall be punished as provided in s. 790.06(12), except that a licenseholder who unlawfully discharges a weapon or firearm on school property as prohibited by this subsection commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.


(3) This section does not apply to any law enforcement officer as defined in s. 943.10(1), (2), (3), (4), (6), (7), (8), (9), or (14); any person licensed pursuant to Chapter 493 Florida Statutes, who is a valid Class K firearms instructor, or those other persons who pursuant to that Chapter are authorized to bear a firearm pursuant to s.  493.6115, while employed or volunteering at or on the grounds of a private school.
.

(4) Notwithstanding s. 985.24, s. 985.245, or s. 985.25(1), any minor under 18 years of age who is charged under this section with possessing or discharging a firearm on school property shall be detained in secure detention, unless the state attorney authorizes the release of the minor, and shall be given a probable cause hearing within 24 hours after being taken into custody. At the hearing, the court may order that the minor continue to be held in secure detention for a period of 21 days, during which time the minor shall receive medical, psychiatric, psychological, or substance abuse examinations pursuant to s. 985.18, and a written report shall be completed.

This Act shall take effect upon . . . .

{I have not included anything about “armed volunteers” or permitting a CWL to carry concealed on the grounds of a school as these are issues that would involve more controversy with the Legislature, and are less likely to pass.  However, I think both of those issues should be addressed by the Legislature in the future.}

Thursday, October 20, 2016

Suggested change to fix Florida self defense statutes

I wrote a letter to Florida Senator David Simmons,  the original author of Florida's Stand Your Ground law, with a suggestion how to fix the substantial drafting changes made in 2014 that totally screwed up Florida self defense laws.  While I'd really like to see the pre-2014 laws reinstated as written,  this would at least fix the current problems, and be consistent with the reason the Legislature made changes in 2014, in the first place.  If you agree -- a letter to Senator Simmons might be helpful.  I understand it is something he will be seriously considering in December.

PROPOSED AMENDMENT TO F.S. 776.012 & 776.031:


WHY THESE SECTIONS NEED CHANGE:

In 2014 the Legislature amended F.S. 776.012; 776.013; and 776.032 to include “threats” on the supposition that “threats” were not then covered under these sections, and only the actual “use” of deadly or non-deadly force was covered.  However, the amendments were so worded as to cause serious and substantial problems for Florida citizens.

Why?

Because the amended wording now states that any “threat” of deadly force – even a simple verbal one – cannot be made in a non-deadly force situation, even if totally reasonable.

That means in any instance where a person is trying to stop a crime, or prevent injury to themself or others where the crime is less than a “forcible felony” – even as a pure bluff, they can’t even say they have a gun, or do anything else that might be interpreted as a “threat” of deadly force – even if totally reasonable. 

This is not only contrary to all prior case law and the common law of Florida , but is contrary to the laws of almost all other states.  Since colonial times it has been lawful to threaten deadly force, even in a non-deadly force situation, as long as the threat is reasonable!  If a threat is reasonable – how can we allow that to now be unlawful?

THE CURE FOR THE PROBLEM:

The cure is a rather incredibly simple amendment to the wording of the current affected statutes as I set forth here with added words in bold italics, and those struck having a line thru them.  Those simple four words change everything back to allow your actions to be judged on whether your conduct is reasonable, or not:

Florida Statute 776.012:
(1) A person is justified in using [non-deadly force] or  threatening to use [any] force, except deadly force   against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force.

(2) A person is justified in using or threatening to use  deadly force if he or she reasonably believes that using or threatening to use  such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony. A person who uses or threatens to use  deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the  deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.
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* The words in blue are ones I would also omit, to bring the text back to pre-2014, as was no need to complicate the right of self defense caused by these words that were added in 2014.  However, I doubt the Legislature will agree.
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Florida Statute 776.031: Use or threatened use of force in defense of property:

(1) A person is justified in using [non-deadly force] or threatening to use [any] force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the other’s trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force.

(2) A person is justified in using or threatening to use  deadly force only if he or she reasonably believes that such conduct is necessary to prevent the imminent commission of a forcible felony. A person who uses or threatens to use  deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.

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Senator Simmons may be politely and respectfully contacted at his legislative office at:

Senator David Simmons
220 Crown Oak Centre Drive
Longwood, FL 32750


Sunday, October 2, 2016

Open carry bill -- a criticism and my response

Sean  Caranna, one of the founders of Florida Carry, sent me this response to a blog post that I thought deserved a reply.  I'm not doing this as criticism, as I consider Sean a very knowledgeable individual, and very pro-gun, as is his organization, Florida Carry.  In fact,  the work Florida Carry does in Florida is invaluable, and I urge everyone to join that organization.  However, let's get to the mud slinging:

This is Sean's rant to me over my blog article on the open carry bill, and afterwards, my response:

You're conflating bills on the school section, this is not the campus carry bill. You're also failing to give weight to statutes that are in chapter 790 but not in the bill with the .053 change for open carry (no need to mention concealed, that's 790.01 and 790.06). Obviously an arrest based only on RAS is unconstitutional, the bill doesn't (can't) change that. Sub 5 has a number of problems bigger than the one you grabbed on to. It will be changed. There are see through bags and cases, there are open top purses where a "cased" firearm can be found to be openly carried. Pull the case notes on the section and start shepardizing. Saying things like "totally unnecessary as it is already the law" publicly is an insult to the legislator who put it in to the bill. Furthermore, language is often added to bills to clarify current law, show legislative intent, and to make a provision "later enacted" for statutory construction hierarchy purposes. As to the signs, the chapter expressly does not modify the elements necessary for a trespass. Go read the staff analysis or contact me directly to discuss any concerns you may have. Working on bill language on your Blog is NOT how the legislative process works


STATEMENT:  You're conflating bills on the school section, this is not the campus carry bill. You're also failing to give weight to statutes that are in chapter 790 but not in the bill with the .053 change for open carry (no need to mention concealed, that's 790.01 and 790.06). Obviously an arrest based only on RAS is unconstitutional, the bill doesn't (can't) change that. Sub 5 has a number of problems bigger than the one you grabbed on to. It will be changed.

MY ANSWER:   If it “will be changed” – then why not change it BEFORE it’s filed?   I don’t understand that logic.

STATEMENT:  There are see through bags and cases, there are open top purses where a "cased" firearm can be found to be openly carried.

MY ANSWER:  A “see thru bag” is open carry – because in no way is it “concealed carry”.  There is no third choice.  It is either “open” to view, or “concealed” from view.

STATEMENT:  Pull the case notes on the section and start shepardizing.

MY ANSWER:  Unlike some in the pro-gun movement, I see no need to throw insults at those who don’t completely agree with what I consider to be appropriate, or where I point out issues that I perceive will cause problems.  So, when someone attacks me as “not knowing what I’m talking about”, or “pull the case notes and start shepardizing” – my response is that: for years I have offered to give input on  possible legislation or issues totally anonymously and without recognition, so that any perceived political power or influence of the person asking for my assistance is not diminished.  So far, after twenty three years – the best I’ve gotten on that offer is insults.  While I can certainly make a mistake, or overlook something, I spend tens of hours, or more, on any subject before it goes into written form.    So “no” – I don’t need to “pull the case notes” – I’ve already done that, and lots more.  Thanks for the insult.

STATEMENT:  Saying things like "totally unnecessary as it is already the law" publicly is an insult to the legislator who put it in to the bill. Furthermore, language is often added to bills to clarify current law, show legislative intent, and to make a provision "later enacted" for statutory construction hierarchy purposes.

MY ANSWER:   I have commented on various bills prior to their passage, and warned of the problems within those bills or their shortcomings.  I have sent letters to legislators.  Emails to Marion Hammer.   Facebook comments to Florida Carry.  Not once was I taken seriously, with a result that now Florida citizens have bills turned into law that were either ineffective, or caused as many problems as they set out to cure.  If a legislator doesn’t even have the courtesy to acknowledge my suggestions, and the key pro-gun organizations ignore and insult me – how is honest commentary by me an “insult”.  It should be taken in the same way it is given – as a message from a concerned citizen that there are issues within the bill that were somehow missed, and need to be corrected.

STATEMENT:  As to the signs, the chapter expressly does not modify the elements necessary for a trespass. Go read the staff analysis or contact me directly to discuss any concerns you may have. Working on bill language on your Blog is NOT how the legislative process works.


MY ANSWER:   I would be glad to discuss my concerns with you by email, anytime, if you would be kind enough to give me your email contact.  However, the legislative process SHOULD work by listening to input from ALL citizens – especially those knowledgeable in an select area.  My blog serves that purpose.  For now, a trespass occurs when a person is told to leave another’s premises (and refuses), told they cannot enter (and ignores that), or by specific statutes that list other situations that are considered a trespass.  However, there is a substantial question whether a sign on a business “No Weapons” – actually has the legal effect that anyone who enters is a “trespasser”, because if they are a trespasser with a firearm – then under Florida law they are an “armed trespasser”, and have committed a felony.  Whereas, the other equal legal argument is that they are still a business invitee or licensee, and not a trespasser, unless told they must leave (and refuse), or there is some barrier or personnel at the business entrance checking that.  Some other states actually have that written into their laws.  But, the language used in this bill will automatically make it a trespass or armed trespass (depending on the weapon).  Moreover, the language only requires a single sign – and the language does not require a violation be either knowing or willful.  Thus, an arrest for felony “armed trespass” will be possible for an innocent concealed carry into a business where the individual either forgot he or she was carrying, or didn’t see the sign.  Since most businesses will (in my opinion) post these signs for insurance purposes or because “open carry” will offend many of their customers – both open and concealed carry will be banned as a matter of law due to the sign  – and places where it is common to conceal carry will no longer be available to a CWL holder – thus substantially diminishing the places where you can carry concealed.

If I am correct – this is a very serious issue.  And again, in my opinion the time to correct proposed legislation is not AFTER the bill is filed, but BEFORE.   And if the recommendations of citizens in pointing out perceived problems with a bill are an “insult” to the legislative sponsor rather than welcomed input that should be considered – then we are no longer a democracy.  

Saturday, October 1, 2016

The problems with the Open Carry bill -- and what you can do to help

The "open carry" bill will likely hit the Legislature again in the 2017 session.  While I favor open carry, this bill has some SERIOUS DEFECTS that need to be corrected before being refiled, or need to be amended.  I have therefore added the text of the current bill here, and highlighted the problem areas, as well as inserting my reasons for correcting them, and some suggestions.

Orange highlight =  problem areas of bill
Green highlight =   text I've inserted to correct some problems
Yellow highlight =  My reasoning and recommendations for needed changes

Please contact the NRA,  Florida Sportsmen, Florida Carry, and your representatives -- and ask them to seriously consider these changes:

A bill to be entitled
An act relating to weapons and firearms; creating s.  790.0015, F.S.; providing that certain persons and  public entities that infringe on specified rights of  an individual may be subject to liability under  specified provisions and have no immunity; providing  an exception; providing construction; creating s.  790.0016, F.S.; providing that an employer may direct  an employee regarding weapons; providing that an  employee has no cause of action against an employer  regarding such direction; providing construction;  amending s. 790.02, F.S.; specifying that a law  enforcement officer may arrest a person for the  unlicensed carrying of a concealed weapon only upon  reasonable suspicion or probable cause that such a  violation is being committed; amending s. 790.053,  F.S.; providing that a person licensed to carry a  concealed firearm or concealed weapon may also openly  carry such firearm or weapon as long as such person is  in compliance with specified provisions; authorizing a  public hospital to prohibit the open carrying of  weapons and firearms; providing requirements for  openly carrying such firearm; specifying circumstances  under which a person may not openly carry a firearm;  providing that a person illegally present in the  United States is ineligible for a license to carry a  concealed weapon or a concealed firearm; providing  that a person illegally present in the United States  is ineligible for a license to carry a concealed weapon or a concealed firearm; amending s. 790.06,  F.S.; providing that certain legislators may carry a  concealed weapon or firearm in meetings of the  Legislature; amending s. 790.25, F.S.; revising  legislative findings concerning the possession and  carrying of weapons and firearms; providing an  effective date.

Be It Enacted by the Legislature of the State of Florida:
Section 1.  Section 790.0015, Florida Statutes, is created  to read:
790.0015  Infringement of rights; penalties; construction.—
(1)  Section 790.33, including the penalty provisions of s.  790.33(3)(c), (d), (e), and (f), apply to any person or entity  infringing upon the rights conferred by this chapter, chapter  776, s. 8, Art. I of the State Constitution, or the Second  Amendment to the United States Constitution. Notwithstanding any  other law, no immunity applies to persons or entities infringing  upon such rights in violation of s. 790.33.
(2)  This section is not intended to restrict a law  enforcement officer's ability or authority to conduct  investigations as otherwise authorized by law.
(3)(a)  This chapter, chapter 776, s. 8, Art. I of the  State Constitution, and the Second Amendment to the United  States Constitution do not modify or diminish the rights of a  private owner or lessee of real property or its agent, or a  private employer, to prohibit the possession of a firearm on  real property or at the place of employment or to post or  display written notice or otherwise directly communicate to any  person on the real property or at the place of employment that  the possession of a firearm is prohibited.


This wording is dangerous as it automatically makes the act of entry, either open carry or concealed – into a felony “armed trespass”.  The language highlighted should be removed, as “direct communication” is already the law.  If you really want a sign law – then it should be specifically to prohibit only open carry – as that would allow concealed carry except where the property owner communicated otherwise to the CWL holder.  Failure to remove this language will cause a substantial restriction in where CWL holders can currently carry.

(b)  This chapter, chapter 776, s. 8, Art. I of the State  Constitution, and the Second Amendment to the United States  Constitution do not expand any existing duty of, or create any  additional duty for, a private owner or lessee of real property  or its agent, or a private employer.

Section 2.  Section 790.0016, Florida Statutes, is created  to read:
790.0016  Employer weapons policies.—An employee shall not  have a cause of action against an employer related to  disciplinary action of the employer, including termination of  employment, resulting from the failure of the employee to comply  with an order of the employer to carry or not carry, or relating  to the manner of carrying, a weapon on his or her person during  work hours. This section does not impair a cause of action  against an employer which arises under another law.
Section 3.  Section 790.02, Florida Statutes, is amended to  read:
790.02  Officer to arrest without warrant and upon probable  cause.—The unlicensed carrying of a concealed weapon is declared  a breach of peace, and any officer authorized to make arrests  under the laws of this state may make arrests without warrant of  persons violating the provisions of s. 790.01 when said officer  has reasonable suspicion grounds or probable cause to believe  that the offense of unlicensed carrying of a concealed weapon is  being committed.

The prior subsection is legally and constitutionally wrong.  While a person may be lawfully stopped for an investigatory detention on “reasonable suspicion” (which is Less than probable cause), an arrest may be made only upon “probable cause”.  This is long standing Fourth Amendment constitutional law.  The elimination of “reasonable suspicion” would cure the issue.



Section 4.  Section 790.053, Florida Statutes, is amended  to read:
790.053  Open carrying of weapons.—
(1)(a)  Subject to the restrictions and limitations of ss.  790.06 and 790.10 and except as provided in paragraph (b), a  person licensed to carry a concealed weapon or concealed firearm  pursuant to this chapter may [ALSO] openly carry such weapon or  firearm; however, except as otherwise provided by law and in  subsection (3) (2), it is unlawful for any other person to  openly carry on or about his or her person a any firearm or  electric weapon or device.{{EXCEPT AS OTHERWISE AUTHORIZED BY LAW}} It is not a violation of this section  for a person licensed to carry a concealed firearm as provided  in s. 790.06(1), and who is lawfully carrying a firearm in a  concealed manner, to briefly and openly display the firearm to  the ordinary sight of another person, unless the firearm is  intentionally displayed in an angry or threatening manner, not  in necessary self-defense.

The word “also” should be added, otherwise there is a chance the subsection will be read as restricting concealed carry, and only allowing open carry.  “Also” totally clarifies this issue.

(b)  Notwithstanding paragraph (a), a public hospital may  prohibit a licensee from openly carrying a weapon or firearm.

(2)  A firearm that is openly carried under this section by  a licensee may be loaded or unloaded and must be carried on or  about the licensee in a holster that is wholly or partially  visible or carried on or about the licensee in a case or bag  that is wholly or partially visible.

The subsection is legally incorrect as a firearm in a case or bag is already “concealed” and not “openly carried” according to long standing case law.  Therefore, the current wording changes the law on what “open carry” means, and can only lead to serious problems.

(3)(2) A person may openly carry, for purposes of lawful  self-defense:
(a)  A self-defense chemical spray.
(b)  A nonlethal stun gun or dart-firing stun gun or other  nonlethal electric weapon or device that is designed solely for  defensive purposes.
(4)(3) Any person [WILLFULLY] violating this section commits a  misdemeanor of the second degree, punishable as provided in s.  775.082 or s. 775.083.

The word “willfully” should be added to make any negligent or inadvertent act noncriminal.  Otherwise, the subsection could set a trap for the unwary CWL holder that would not only render innocent conduct a crime, but also result in loss of their CWL.

(5)  Notwithstanding any other provision of law, a person  may not openly carry a firearm if the person is under the  influence of an alcoholic beverage, a chemical substance as  described in s. 877.111, or a controlled substance as defined in  chapter 893 when he or she is affected to the extent that his or  her normal faculties are impaired. {{EXCEPT IN LAWFUL SELF DEFENSE]]

“Lawful self defense” must be added, otherwise a individual who is completely entitled to use lawful self defense who had a bit too much to drink, would now be engaging in “criminal conduct” in defending themselves simply because they might be home when attacked, and had a few beers.

Section 5.  A person illegally present in the United States  is ineligible for a license to carry a concealed weapon or a  concealed firearm under chapter 790, Florida Statutes.

I have no idea why this is added as you must already be a lawful resident alien under the laws of the United States or a citizen to get a Florida CWL per the statute, 790.06.  However, it doesn't hurt to add it -- it is just totally unnecessary as it is already the law.


Section 6.  Paragraph (a) of subsection (12) of section  790.06, Florida Statutes, is amended to read:
790.06  License to carry concealed weapon or firearm.— (12)(a)  A license issued under this section does not  authorize any person to openly carry a handgun or carry a  concealed weapon or firearm into:
1.  Any place of nuisance as defined in s. 823.05;
2.  Any police, sheriff, or highway patrol station;
3.  Any detention facility, prison, or jail;
4.  Any courthouse;
5.  Any courtroom, except that nothing in this section  would preclude a judge from carrying a concealed weapon or  determining who will carry a concealed weapon in his or her  courtroom;
6.  Any polling place;
7.  Any meeting of the governing body of a county, public  school district, municipality, or special district;
8.  Any meeting of the Legislature or a committee thereof, except that this section does not preclude a member of the  Legislature who is a licensee from carrying a concealed weapon  or concealed firearm in such meeting;
9.  Any school, college, or professional athletic event not  related to firearms;
10.  Any elementary or secondary school facility or  administration building;
11.  Any career center;
12.  Any portion of an establishment licensed to dispense
alcoholic beverages for consumption on the premises, which  portion of the establishment is primarily devoted to such  purpose;
13.  Any college or university facility unless the licensee  is a registered student, employee, or faculty member of such  college or university and the weapon is a stun gun or nonlethal  electric weapon or device designed solely for defensive purposes [and the weapon does not fire a dart or projectile]; or a self defense chemical spray or dart firing stun gun.

Adding a “self defense chemical spray” and “dart firing stun gun”, and eliminating any conflicting wording is long overdue,  definitely needed, would be easy to do, and  would make much more sense than the current subsection.  A stun gun requires intimate body contact to use, and often has insufficient power for effective defense, whereas a Taser type weapon or pepper spray can be used from a distance of ten to fifteen feet, are much more effective as a defensive weapons, and have an almost totally “defensive” use.  It makes no sense to require a student or faculty member to engage in hand-to-hand combat with a stun gun, when widely available better and safer weapons are available, and leave no lasting harm on an attacker. 

14.  The inside of the passenger terminal and sterile area  of any airport, provided that no person shall be prohibited from  carrying any legal firearm into the terminal, which firearm is  encased for shipment for purposes of checking such firearm as  baggage to be lawfully transported on any aircraft; or
15.  Any place where the carrying of firearms is prohibited  by federal law.  [except no Florida law enforcement officer shall make an arrest based on federal law where Florida law would otherwise permit such conduct, and such shall not be considered "criminal conduct" under Florida law.}

While this is the current law, I simply warn that this should be changed  to my suggestion -- as being in a post office parking lot could now be "criminal conduct" that would negate your self defense rights, as well as many other issues that Florida allows, but is against federal law -- like a securely encased firearm in a vehicle traveling within 1000 feet of a school zone with no CWL.  These situations should not be considered "criminal conduct" that would negate your self defense rights under Chapter 776.


Section 7.  Subsection (1) of section 790.25, Florida  Statutes, is amended to read:
790.25  Lawful ownership, possession, and use of firearms  and other weapons.—
(1)  DECLARATION OF POLICY.—The Legislature finds as a  matter of public policy and fact that the possession and   carrying of weapons and firearms by law-abiding individuals for  lawful purposes, including self-defense, enhances public safety  and that it is necessary to promote firearms safety and to curb  and prevent the use of firearms and other weapons in crime and  by incompetent persons without prohibiting the lawful use in  defense of life, home, and property, and the use by United  States or state military organizations, and as otherwise now  authorized by law, including the right to use and own firearms  for target practice and marksmanship on target practice ranges  or other lawful places, and lawful hunting and other lawful  purposes.
Section 8.  This act shall take effect upon becoming a law.

Thursday, September 29, 2016

Antique Firearm issue settled in Florida

ANTIQUE FIREARM ISSUE CLEARED IN FLORIDA
by jon gutmacher

Those of you who own black powder guns know there's been a lot of controversy what a "replica" is, or is not.  Two appellate districts took totally opposing views, and the Florida Supreme Court finally settled the issue this September 22, 2016, in State v. Weeks -- and held that the firing mechanism of the gun is what determines a replica -- regardless of any other features.   Thus, a blackpowder gun with a modern primer was held to be a replica.  Of course,  federal law is a bit stricter and forbids any muzzle loader that has interchangeable barrels that could take modern ammo.

Thanks to the First District Court of Appeal for an initial great opinion, and the follow up by the Florida Supreme Court -- and of course,  the great attorneys involved in finally getting this cleared up.

Sunday, September 11, 2016

Can a church or other religious institution have armed volunteers? A change in the book!

Can a church or other religious institution  have armed volunteers? -- A change to page 107.
copyright 2016 by jon gutmacher

Page 107 of the book has long indicated that it is unlawful to have armed volunteer security personnel at a church or other religious institution.  After significant reflection and study, I have changed my opinion on this except as to those portions of the grounds and buildings that have  daycare or school activities.  I will explain:

1. Security guards are covered in Chapter 493 of the Florida Statutes.

2. The definition in F.S. 493.6101(19), clearly states that a “security officer” is a person working for “consideration”.   That means they are getting paid something, or provided some monitary or property type incentive for their services.  As such, it normally excludes a “volunteer”.

3. F.S. 493.6102 contains the exclusions to C.493.   In other words – to whom these laws don’t apply.   While it does exclude only “unarmed” persons “employed” to guard a religious institution such that these persons may “not carry a firearm” – it is critical that the wording in almost every subsection of 493.6102 concerns “employed” individuals.  However, a “volunteer” is not an “employee”, and is not “employed” by anyone in the sense the statute covers.

I therefore have changed my opinion on whether there can be armed volunteers at a church or religious institution, and so correct page 107 of the book.  Likewise, I warn that obviously you would need a CWL to carry, as there is no law that allows open carry of a firearm.  And likewise, I continue to warn that portions of the premises that are used for daycare or as a school are prohibited to all persons armed with a firearm other than law enforcement.

Friday, August 12, 2016

Critically important case on Stand Your Ground Immunity in a civil suit in Florida

Critically important Civil "Stand Your Ground" immunity appeal decided in Florida
copyright 2016 by jon gutmacher

In Professional Roofing & Sales , Inc. v. Flemmings, 138 So.3d 524 (Fla. 3DCA 2014), the Third District Court of Appeal held that even though a defendant had been granted "Stand Your Ground" immunity  under F.S. 776.032 in a criminal case -- he or she could still be sued civilly, and the issue of immunity be relitigated.  Of course,  if such a person were sued by several persons independently, the issue of immunity would then be relitigated numerous times -- and the burden on an individual already found to be immune from criminal prosecution would be overwhelming.  Something that many legal jurists found to be repugnant to the immunity grant, and inconsistent with the intent of the Legislature.  However,  it was the law in Florida until very recently, when the Second District Court of Appeal, in Patel v. Kumar, 41 Fla. L.Weekly D1541 (Fla. 2DCA 2016),  held completely opposite of the Third District.

In the Patel case, Mr. Patel had been attacked in a bar without provocation , and Patel responded by defensively punching his attacker,  Mr. Kumar, in the head.  Unfortunately for Kumar,  Patel had a glass in his hand when he was attacked, and when he threw his defensive punch, the glass (still in his hand) shattered, causing serious injury to Mr. Kumar.   The State (in its infinite wisdom) prosecuted Mr. Patel for a felony,  with the court eventually dismissing the case based on Stand Your Ground immunity after an extensive evidentiary hearing, and an unsuccessful appeal was taken by the State and denied.  (actually, the litigation history was a bit more complex, but unnecessary to this article)

In a well thought out Opinion by the very respected Judge Northcutt (and concurring opinion of Judge Badalamenti), the Second District held that once a Stand Your Ground immunity is established -- it applies to any subsequent cases.  Thus,  there is now a division of authority in Florida on the issue, and it is one that is sure to be addressed by the Florida Supreme Court at some point in the future, because of its importance.  If you're in the jurisdiction of the Third District (Miami area) -- you're in unfriendly legal territory because the decision of the Third District is binding there.  Likewise, if you're in the jurisdiction of the Second District (Tampa area) you are in an area where the Second District decision is binding.  Everywhere else in Florida -- each court is permitted to rule as the judge thinks is proper -- until their own District Court of Appeal, or the Florida Supreme Court makes a ruling.

This was a critically important decision for gun owners -- and I can tell you that the issues involved were legally very complex.  Big congratulations to the attorneys for Mr. Patel.  Stephen L. Romine [Clearwater], and Kimberley M. Kohn [Tampa] for a job well done.


** You may freely reproduce and distribute this article for non-commercial purposes only so long as you acknowledge my authorship and copyright