Wednesday, November 4, 2015

Does Florida Statute 790.25(5) require all "securely encased" firearms be "concealed"?

Does F.S. 790.25(5), require that all securely encased firearms and weapons be concealed?
copyright 2015 by jon gutmacher

I had an interesting question from a reader that at first blush,  would appear to require all securely encased firearms and weapons also be kept concealed.  Here's the actual question:

"Jon, I am curious how you arrive at the conclusion "while it is considered lawful for a properly holstered firearm or other weapon to be kept in the open within a private conveyance..." when statute 790.25(5) explicitly states that it must be concealed, "...for a person 18 years of age or older to possess a CONCEALED firearm or other weapon....".?

Now -- 790.25(5) does state . . . "it is not a violation of s. 790.01 for a person . . . to possess a concealed firearm or other weapon . . . within the interior of a private conveyance . . . if the firearm or other weapon is securely encased . . . ."

So -- sounds like this reader got it right, doesn't it?

Well . . .  the answer is "no" -- and that's not because he wasn't sharp.  In fact, he was really sharp to have concluded that.  But, he was still wrong.   Why?

Well,  That portion of 790.25(5) specifically refers to F.S.790.01, and F.S. 790.01 is a statute that ONLY deals with "concealed" firearms and weapons.  It does not deal with "open carry" -- which is covered in F.S. 790.053, and would be controlled by F.S. 790.25(l), as long as the firearm or weapon were still "securely encased".  (the typical example -- a strapped handgun on the seat)(which -- by the way -- I do not suggest you do, legal or not).

Pretty tricky, huh?   I'll bet that even 90% of all lawyers and judges would get that one wrong, as well, unless they had someone who understood this stuff  pointing out the correct reasoning behind it.
Very easy to miss.

So, hope that clears it up.  Have a great day!

Tuesday, October 13, 2015

Let's decriminalize "open carry" for CWL holders!!!!!

Wow!   Talk about an incredible idea nobody ever thought about!!!  Sean Caranna of Florida Open Carry sent me a comment where he made this suggestion, and I thought about it for a second, and went "WOW!" -- why the hell didn't I ever think of that?   In fact -- why the hell wasn't this the main feature of HB 163 instead of all this "open carry" stuff???

Talk about solving a problem once and for all!

Make "open carry" for a CWL holder a civil infraction!!!  In other words -- no arrest.  Just a lousy fine.  Make the fine not more than $25.00 plus costs, and we've just solved the main open carry problem!!!      Talk about easy!

I'm not saying the rest of HB 163 isn't needed -- it is!   Very important.   And of course,  I've made some additional suggestions:

Like:   "It is lawful and not "open carry" for a firearm or weapon to "print" under clothing, nor does unintentional exposure of any kind constitute "open carry" unless the individual so carrying is first warned by a law enforcement officer of the problem, and after such warning refuses to correct it.  Furthermore, any person who is not otherwise prohibited by law may openly carry and display any firearm or weapon upon public property or the property of another which he or she has received permission from the owner or person in charge, except for schools, or other places specifically prohibited by law

Great suggestion, Sean!

Wednesday, October 7, 2015

Florida's "Open Carry" of firearms & weapons bill -- HB 163 -- My analysis (2015)

The "open carry" bill in the Florida Legislature -- 2015.
copyright 2015 by jon gutmacher

HB 163 is a new bill before the Florida Legislature that has several components, some good,  one that is very controversial, and leaves out all sorts of other things that are really needed that would fit right in.

Let’s start with the good stuff.   First, the bill requires the judiciary to “strictly construe” any statute that implicates the right to bear arms, or right of self defense – in the strictest legal fashion possible.   It holds that the right to bear arms is a fundamental right, and that lawful carry of firearms and weapons benefits the public safety. This is obviously very good for gun owners.  It will be of major assistance in any court case.

Next, it clarifies that just because a police officer thinks you’re carrying a firearm or weapon doesn’t give him or her the right to arrest or detain you unless they also have “probable cause” to believe you’re unlicensed.   The lesser standard of “reasonable belief” is superceded.  Of course, an officer would still be able to stop you if they had a reasonable basis to believe you were about to commit a crime, or were involved in a felony.  However, they couldn’t hassle you just because they think you have a weapon on you.  Again – a good thing.

OK – let’s move to the controversial part – section 3.  That’s the right of any CWL holder to openly carry a firearm or weapon anywhere they could now carry it concealed.  Lots of gun owners like this.  Lots don’t.  I’m a don’t, as are the majority of law enforcement, the majority of the firearms industry, and the majority of firearms instructors.   The reasons?

1.   Concealed carry is working great in Florida.  It has over forty years of case law, and other things interpreting it.  Most folks (especially if they read my book) understand it.  Why screw up the works with something entirely new and different???

2.  Other states that are open carry have a history of open carry.  It’s the norm.  Florida doesn’t.  We’re used to the exact opposite.  When we tried open carry with CWL’s  back around 1987 (I think that was the year) there was a total uproar – and “concealed” became required because every urban area in Florida was screaming against it.  If anything – the sentiment would be worse, today.

3.  Florida has a fluid population, lots of tourists, lots of tourist destinations that will do everything they can to circumvent such a law on their properties, and a business community that will do the same.   It won’t work here.  Likewise, if it did pass, I can guarantee that within one to two legislative sessions the business community would force a new law that made it a crime to enter any business with a posted “no weapons” sign.  That would make your entry a felony trespass.  “Felony!”  Right now – you can do it unless they ask you to leave, or check your bags and refuse to allow you to enter.  Until then, you’re technically a “business invitee”.  But, once told to leave you become a trespasser if you don’t immediately comply.  Other open carry  states have this law.  No reason to believe it wouldn’t happen in Florida.  That would likely significantly restrict where you could go, whereas now, with a concealed weapon or firearm – nobody really cares except at the attractions.

4.  Personally, I want the element of surprise if I have to use or threaten to use a firearm.  Having it openly carried brands me as the guy who gets shot first.  Likewise, I can’t tell you how many situations I’ve heard of, or had to represent where some moron decides he’s gonna challenge the guy with the gun or weapon.  “What are you gonna do, shoot me?”   Boy, do those go bad, fast!

Next problem is what I think is a mistake in the bill if open carry is redacted, and the rest goes forward.  It pertains to a portion of subsection (3) that eliminates the right to momentarily display a fire arm or weapon by a CWL holder.   I’m just saying – if part of the bill passes without open carry – this needs to stay in – not be taken out.

Last – what is the bill missing???   Well, I’ll keep that very short since I could write several paragraphs.

First – we need a change in Florida law to allow open carry anywhere the property owner allows!  Did you know, you can’t authorize a friend to open carry on your property unless it falls within one of the exceptions in F.S. 790.25???   Stupid!  It needs to be fixed!

Second –  I'm tired of Disney screwing with everyone.   There should be a law that every hotel and motel must allow guests to keep concealed firearms and weapons in their hotel room, and securely encased and out of sight in their vehicles.  They have this in several other states.   Usually,  you're allowed to bring the firearm directly to your room from your vehicle, and directly back to your vehicle.  No stops at the snack bar.   Good law that seems fair to both the hotel industry and to the guest.  But at the very least -- it should be lawful if securely encased and out of sight in any parking lot -- no matter who owns the lot.  Hotels,  Disney,  or almost anywhere else!

Third -- rather than pure "open carry" to cure the bad arrests -- 790.053 could be amended to read that it is not open carry for a firearm or other weapon to "print" underneath clothing,  it is not open carry for an individual to unknowingly or negligently allowing a firearm or weapon to become exposed so long as they lawfully conceal it within a reasonable period upon being so informed,  and that it is not open carry for a CWL holder to momentarily show and expose their firearm or weapon to another in a non-threatening manner for one minute or less?    I'm not saying this should be used word-for-word, but it gives you an idea of what else could be done.  And to make it clear -- the rest of HB 163 is a VERY GOOD IDEA!  I just don't like subsection (3) open carry, as a per se rule.

So – that’s my short take.   I’d spend more time.  But, I’ve got other things I need to do.

jon gutmacher

** This article is a copyrighted work -- but may be distributed for non-commercial purposes so long as my copyright and authorship is clearly specified at the beginning.

Sunday, September 27, 2015

Regal Movie Theaters are searching handbags -- what to do

Bag Searches at Regal Movie Theaters
copyright 2015 by jon gutmacher

Well . . .  got an email today from a lady who said her handbag was searched at a Regal movie theater when she entered.  She said they have a sign up that they now search bags and backpacks -- and I guess they interpret that to mean women's handbags, as well.  An usher asked to check her bag on her way in.

So, what's the law???

Well . . .  if you read the book and remember the section on armed trespass -- you already know.  A private company has the right to "ask" to search you or your belongings as a condition of coming on their property.   That's the right to:  "ASK" -- not the right to "SEARCH".

You have the right to agree -- or to -- REFUSE!

If you refuse,  they can ask you to leave, and you must.   You are entitled to a refund, but if they direct you to leave, and refuse a refund -- your remedy is in court -- not by refusing to leave until you get your money back.   That actually becomes a "trespass" -- and if you're armed -- it is a felony "armed trespass".

So -- what would I do???
Well . . .  the first thing I'm going to do right now is email Regal that I am deeply offended by their new policy -- at least as to a woman's purse --  and will go elsewhere until they change it.

But -- what would I do in that situation???

Answer:   I would NEVER --NEVER -- let them search my purse!  Backpacks are kind of different.  I would never take a backpack into a movie theater in the first place. But a woman's purse is different.  It's common.  It's personal.  It's something every woman usually has at the movies (and most other places).  An AK will not fit in a woman's purse.

However,  I guarantee you that if you let them search -- and they see the gun -- they will go ballistic!!!  They will over-react!   Shit will fly!   And you will suffer, at the very least -- embarrassment -- if not a whole lot worse.

Now . . .  if they ask you "WHY" you won't allow a search -- you can reply:  "My purse is very personal.  I am also very offended, as I think you are intruding on my constitutional rights."

At that point -- they can accept your explanation, or insist on their policy.  But either way,  they aren't intruding on your constitutional rights -- as the Constitution is normally a document that applies only to restrict or empower the government -- not private enterprise.  However,   the legislature could make a law forbidding them from asking you -- and quite frankly,  we need some laws in this area that prevent this type intrusion.

So . . .   that's my answer.   Hope it helps.

this article may be copied or distributed for non-commercial purposes so long as my authorship and copyright are included.

Sunday, August 30, 2015

Interesting case involving domestic violence injunction against police officer

Possession by police officer after issuance of domestic violence injunction 
by jon gutmacher

790.233 Possession of firearm or ammunition prohibited when person is subject to an injunction against committing acts of domestic violence, stalking, or cyberstalking; penalties.—
(1) A person may not have in his or her care, custody, possession, or control any firearm or ammunition if the person has been issued a final injunction that is currently in force and effect, restraining that person from committing acts of domestic violence, as issued under s. 741.30 or from committing acts of stalking or cyberstalking, as issued under s. 784.0485.
(2) A person who violates subsection (1) commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(3) It is the intent of the Legislature that the disabilities regarding possession of firearms and ammunition are consistent with federal law. Accordingly, this section does not apply to a state or local officer as defined in s. 943.10(14), holding an active certification, who receives or possesses a firearm or ammunition for use in performing official duties on behalf of the officer’s employing agency, unless otherwise prohibited by the employing agency.
History.—s. 1, ch. 98-284; s. 5, ch. 2012-153.

Martinez v.  Izquierdo, 40 Fla.  L.  Weekly D1405 (Fla.  4DCA 2015).  In this case the court entered a final domestic violence injunction pursuant to F.S. 741.30, and pursuant to F.S. 790.233 required the respondent, a police officer, to surrender all his firearms and ammunition.  The appellate court upheld the injunction, but partially reversed the surrender order holding that pursuant to federal law, and F.S. 790.233(3), a law enforcement officer cannot be ordered to surrender ammunition and firearms “required” for use in performing his or her official duties, unless otherwise prohibited by the employing law enforcement agency.  Thus, the lower court could only enter restrictions for ammo and firearms not so required.

Friday, August 28, 2015

Florida Governor Declares State of Emergency on August 28, 2015 -- explained

Florida Governor Declares State of Emergency.  What does it mean to gun owners?
copyright 2015 by jon gutmacher

On August 28, 2015, Governor Scott of Florida declared a "state of emergency" pursuant to his powers under F.S. 252.36  because of the possible damage of the approaching hurricane.  I have read the Proclaimation, and at this time it does NOT restrict firearms or other weapons.   Thus,  there are currently no changes in normal Florida laws on sale or possession.  If in doubt on what those are -- please refer to my book.  It is considered the "bible" on that subject.

The statute states the Governor "may" make such restrictions, although you would still be able to carry concealed per 790.01 if you were actually "evacuating" an area during a mandatory evacuation.  No mandatory evacuation currently (8/28/15) exists.

And just as a matter of clarification:   only a "local" state of emergency declared by a sheriff, board of county commissioners, or municipality has automatic provisions that affect firearm sales and public carry.  Not -- those issued by the Governor.  The Governor gets to chose what he or she wants, or doesn't want in the declaration.

I reproduce the critical  portions of the statute [252.36] here, if you care to look:

252.36 Emergency management powers of the Governor.—

(2) A state of emergency shall be declared by executive order or proclamation of the Governor if she or he finds an emergency has occurred or that the occurrence or the threat thereof is imminent. The state of emergency shall continue until the Governor finds that the threat or danger has been dealt with to the extent that the emergency conditions no longer exist and she or he terminates the state of emergency by executive order or proclamation, but no state of emergency may continue for longer than 60 days unless renewed by the Governor. The Legislature by concurrent resolution may terminate a state of emergency at any time. Thereupon, the Governor shall issue an executive order or proclamation ending the state of emergency. All executive orders or proclamations issued under this section shall indicate the nature of the emergency, the area or areas threatened, and the conditions which have brought the emergency about or which make possible its termination. An executive order or proclamation shall be promptly disseminated by means calculated to bring its contents to the attention of the general public; and, unless the circumstances attendant upon the emergency prevent or impede such filing, the order or proclamation shall be filed promptly with the Department of State and in the offices of the county commissioners in the counties to which the order or proclamation applies.

5) In addition to any other powers conferred upon the Governor by law, she or he may:

(h) Suspend or limit the sale, dispensing, or transportation of alcoholic beverages, firearms, explosives, and combustibles. However, nothing contained in ss. 252.31-252.90 shall be construed to authorize the seizure, taking, or confiscation of firearms that are lawfully possessed, unless a person is engaged in the commission of a criminal act.
Copyright allowance:
You may freely distribute copies of this memo to anyone as long as you do so in whole, including my authorship and copyright.   Likewise,  if the hurricane actually struck, the Governor could add measures.  Thus,  this memo is date specific.

Thursday, August 20, 2015

Book Update -- in depth August 2015

           Florida Firearms – Law, Use & Ownership – 8th edition
                                       August 2015 book update -- in depth for blog only
                              copyright 2015 by jon gutmacher

page 27
Henderson v.  United States (U.S.Sup.Ct.  May 18, 2015)

Federal law has always left open the question whether a person convicted of a felony who has not disposed of his or her firearms by the time of conviction  – can lawfully transfer them to someone who is not prohibited.  Different federal circuits had reached different conclusions.  The Henderson case has now settled that as the United States Supreme Court held that where an individual is convicted of a felony a court does not violate federal law, and has equitable jurisdiction to order his or her firearms be transferred to a third party where the court is satisfied the firearms will not be returned to the felon. [In Henderson, the firearms were being held by the court pending the outcome of the case].   The decision should clarify that a court may allow a felon to transfer weapons and firearms, as long as such is not inequitable.
chapter five in general:

In 2015 the Legislature amended F.S. 790.01.  The amendment is a major clarification and revision to the statute in three (3) distinct areas, as follows:

The prior version of 790.01(1) and (2) passed in 2006, provided that: “except as provided in subsection (4), a person who carries” a concealed weapon or concealed firearm commits a crime.
790.01(3) Then stated that 790.01 did not apply to a CWL holder.
790.01(4) Then made it lawful to carry certain non-lethal weapons for self defense concealed without a CWL such as a Taser type weapon, self defense stun guns, and self defense pepper sprays as defined by statute.

Because of the statutory wording,  the Supreme Court of Florida in the case of Mackey v.  State, 124 So.  3d 176 (Fla.  2013), held that proof of a valid CWL was an “affirmative defense” to concealed carry rather than an element of the crime.  Thus, in a prosecution under the 2006 statute, it was up to you to prove you had a valid CWL at the time of arrest to beat a concealed weapons charge.  There are other important aspects of the decision, including an officer’s right to arrest for illegal concealed carry – but those issues are more fact specific, and appropriate for a lawyer rather than a discussion, here.

However, the 2015 amendment changed the wording in F.S. 790.01(1) and (2) to now provide that “ a person who is not licensed under s.  790.06" and carries a concealed weapon or firearm commits a crime.

Thus, this simple change in wording should now make having a CWL an “element” of the crime rather than a defense.  In other words – it should overrule that portion of the Mackey decision I just discussed.
page 123

Likewise, because subsection (3) was worded to exclude CWL holders, it seemed to exclude a CWL holder from the allowances in subsection (4). [Well . . . it didn’t exclude a CWL from carrying a concealed Taser or pepper spray, etc. – but a literal reading would mean that a CWL holder could not carry these concealed in any place excluded by 790.06(12), whereas someone without a CWL didn’t have that same restriction.  Something that made no sense, was not intended, and had nothing to do with the purpose of the 2006 amendment.]  Now that this provision is eliminated, the problem for CWL holders has also been eliminated.
page 149

Another new subsection created by the amendment cures the serious complaint  that in a mandatory evacuation, the law previously prohibited anyone from having a firearm on public property during the evacuation.  Thus, if you were in your vehicle fleeing a major disaster, and were on a public road – you were illegal, even if you had a CWL.  Probably the time you needed your firearm the most!

So, in 2015, the Legislature finally got around to amending F.S. 790.01, with some important input from Eric Friday at Florida Carry, and Marion Hammer at Unified Sportsmen of Florida, and
the amended subsection in 790.01(3)(a) now provides that you may carry a “concealed” weapon or firearm “on or about your person” during a mandatory evacuation “while in the act of evacuating”.  No CWL is required – however, the weapon or firearm must be kept concealed.  Thus, you can now carry a firearm or other weapon while you are actually in the process of evacuating – even on public streets and property.

Last: F.S. 790.01(3)(b), remained untouched, and  keeps the exception that allows for concealed carry of certain non-lethal self defense weapons as listed, by non-CWL holders.

A really great piece of legislation, huh?
p69 & p114

Bonidy v.  United States Postal Service (10th Cir.  June 26, 2015)

This recent case held that postal regulations forbidding the possession of a firearm or other weapon on post office property extends to a post office parking lot.  The case is the usual elitist stretch by an unfriendly federal appellate court holding that certain elements of the federal bench will hold back the Second Amendment as long as they can.  (yeah – I’m prejudiced) The court actually held that the parking lot was a “building” within the meaning of post office regulations, and even if it wasn’t – it was a “sensitive area” that allowed regulations to overcome a constitutional amendment!!!   I could go into a lot more detail here – but – we all know this case is bullshit, and that a certain element of society and government is at war with gun owners.  Another reason why no federal judge should ever have “tenure”.  They should all face election, just like anyone else.  For what it’s worth – the lower federal district court held that the parking lot was not a “building”, and certainly wasn’t a sensitive area.  Likewise, while this case is considered as “authority” on the question – other federal courts outside the Tenth Circuit are free to agree or differ on this holding.   When you consider that another federal statute allows a CWL holder to have a firearm in their vehicle on school property – you start to understand how totally hypocritical this decision really is.  To his credit, Judge Tymkovich, contributed an excellent dissent to the Opinion.   All the same – while it is totally legal to have a securely encased firearm in your vehicle in a post office parking lot per Florida law – federal law may – or may not – be contrary.  If you’re packing there, sure as hell, don’t tell anyone!

On the other hand,  if you use or threaten to use a firearm in self defense in a post office parking lot, there is an open question whether this constitutes a "criminal act" because it may be unlawful under federal law (but not Florida law) -- thus making retreat a necessary predicate unless retreat would be futile.  This is due to the 2014 changes in Chapter 776 that I tried warning everyone about.  (and nobody listened).


Security Guards

In 2014 the Legislature amended F.S.493.6115 (6) as follows:
 In addition to any other firearm approved by the department, a licensee who has been issued a Class “G” license may carry a .38 caliber revolver; or a .380 caliber or 9 millimeter semiautomatic pistol; or a .357 caliber revolver with .38 caliber ammunition only; or a .40 caliber handgun; or a .45 ACP handgun while performing duties authorized under this chapter. A licensee may not carry more than two firearms upon her or his person when performing her or his duties. A licensee may only carry a firearm of the specific type and caliber with which she or he is qualified pursuant to the firearms training referenced in subsection (8) or s. 493.6113(3)

subsection (9) also requires that any discharge of a firearm while on duty requires within 5 working days, submit to the department an explanation describing the nature of the incident, the necessity for using the firearm, and a copy of any report prepared by a law enforcement agency. The department may revoke or suspend the Class “G” licensee’s license and the licensed agency’s agency license if this requirement is not met.


Pennamon v.  State , (Fla.  1DCA January 2, 2015), held that a parking lot surrounding a person’s regular place of business qualifies as their “place of business” pursuant to F.S. 790.25(3)(n), allowing open or concealed carry regardless of a CWL.  While this would negate a prosecution for concealed carry by an employee (with or without a CWL) – it does not insulate an individual from discipline from the employer if such is against company policy.

In the July 2015 decision of Bretherick v.  State, (Fla.  July 9, 2015), the Florida Supreme Court held that the burden of proof in an immunity hearing is on the defendant, and not the State.  This is contrary to the traditional view in an immunity case, but in my opinion, was based more on politics than valid legal reasoning.  Under any circumstance, the issue is settled in Florida unless the Legislature wants to change it.
The shorter August book update is now also available on my firearms law website:     The blog update is more in depth.