Wednesday, August 27, 2014


Well . . . you've been asking for it . . .  so here it is.   I finished an e-book on Florida self defense laws that just went on sale at Amazon Kindle.  The book took 400 hours of research and writing to accomplish, and is a full treatment of Florida's self defense laws, including the major revisions to Stand Your Ground passed by the Legislature in 2014.  

The new e-book has several features folks have been asking me to add, for years.  More question-and-answer sections,  actual wording of the statutes, and more case references.  All that was done for this new e-book.  Formatting was a big challenge, and I admit I'm a beginner on how I want future e-books to appear.

Please note that the "Eighth Edition" print version will still cover "everything" in Florida and Federal firearms, weapon, and self defense laws -- plus a substantially expanded section on "what to do" in situations, the courts, and dealing with law enforcement.  It will also cover Tennessee, North and South Carolina, Georgia, and Alabama thanks to contributions from some of the top gun attorneys in those states!  The "Eighth" should come out around Christmas 2014.  Another e-book that covers carry and some of the other areas will also come out by January.  The e-books should allow folks who need the information "in hand" to be available, while the print version will continue to go into substantially more depth, and cover more areas.

Here's a photo of the book cover,  and the Amazon link is:

Tuesday, July 29, 2014

New case supports my analysis of HB 89

In the recent case of Hill v. State, 39 Fla. L. Weekly D. 1464  (Fla. 4DCA 2014)(en banc), the Fourth District confirmed that F.S. 776.012 and F.S. 776.013 were independent of each other.  This was an "en banc" decision -- meaning that it was important enough for all the judges of the Fourth District to sit on the same case vs. the normal 3 judge panel.  This brought the Fourth District into accord with other DCA's in Florida.  As most of you know who've been reading my book since the passage of Stand Your Ground back in 2005 -- I've been saying this from the "get-go" starting right in 2005, and urged attorneys not to defend self defense cases using F.S. 776.013 except as to dwellings, residences, and occupied conveyances -- because that is the only area where it is normally a wise move to do so.  I've also espoused this at numerous seminars including an annual meeting of the Florida Public Defenders Association.  But . . . that is not what this article is about.   What it's about are the last two paragraphs of the Opinion before the Conclusion.  In those last two paragraphs -- athough "dicta" -- the Fourth District noted that the new wording in HB 89 has changed the law so that there are now no real distinctions between the two statutory sections in that both now require that in order to use deadly force without the need to retreat -- you must be "in a place where you have a right to be",  and cannot be involved in any "criminal conduct".

This confirms what I've been saying about the new law, and also confirms my analysis.  The Fourth District opinion is the "writing on the wall" about how Florida appellate courts will interpret the new language.  This case said the Legislature would not have changed the wording unless they meant to make a substantive change in the interpretation, and how the statutes work.  I warned everyone about this, and the only people who listened were the readers of my blog.     Now -- we're all in for the aftermath -- unless the Legislature amends it when they go back in session in 2015.

Tuesday, July 22, 2014

Cumulative August 2014 "Florida Firearms" book update

Florida Firearms – Law, Use & Ownership  – cumulative update 7th edition only, for August 2014 
copyright 2014 by jon h. gutmacher

This is a cumulative update for the 7th edition of the book printings in 2013 - 2014, only, including the "2014" version of the 7th edition.   Major changes include a correction to flare inserts, and the addition of a brief summary of HB 89 passed in the 2014 legislative session.    The page or chapter number for  the "2014" version of the 7th edition prefaces each change or update. An update in "chart form" will be available on my website by mid-August for download.   You may download and distribute this update so long as the full title and my copyright information is included.   The update is currently in draft form, and may be revised before hitting the website in August, so you may want to wait until then, and just use this as a reference until then:

16-20 Weeks v.  State, 39 Fla. L. Weekly D 35 (Fla.  1DCA 2013), clarifies the mess created by the Bostic case.  In Weeks,  the appellate court held that only the firing or ignition mechanism of a gun determines whether it qualifies as an “ antique replica” or  "antique firearm" regardless of the date of manufacture, or whether it has other features such as a scope.  Thus, a black powder muzzle loader with a percussion cap firing system qualified as a “replica” with the court finding the statute is unconstitutionally vague as to what exactly a “replica” is not, and a felon could not be convicted for having such a gun.  Conflict with the Bostic case was certified to the Florida Supreme Court.  Thus for now, it depends in what part of Florida you live as to what an “antique” firearm is, or isn’t  – at least until the Florida Supreme Court settles it.

30    Effective July 1, 2013,  Florida Statute 790.065 has been amended by extending the definition of “committed to a mental institution” to include anyone admitted per the Baker Act for involuntary examination where the examining physician found the person to be an imminent danger to themself or another, and the person agrees to voluntary treatment after being furnished written notice that they may lose certain firearm and CWP rights if they agree.   There are other requirements, and there is a court procedure to restore firearm rights upon proof that the person “will not be likely to act in a manner dangerous to the public safety, and the granting of relief would not be contrary to the public interest.”

80 The Florida Department of Agriculture, Division of Licensing website  has changed to:

72 new reciprocity  –  Iowa has been added, Washington deleted, and Pennsylvania only recognizes the Florida CWP for actual Florida residents.

135 Correction:   BATFE has determined that any smooth bore insert fitted into an emergency rescue flare gun or flare launcher to allow firing of a cartridge or shotgun shell makes the device “any other weapon” under the National Firearms Act, whereas a rifled bore insert of less than ½ inch diameter would be considered an ordinary “pistol” if all the other characteristics of a pistol were retained.  Catastrophic failures have occurred in flare guns using some inserts. See,  ATF 2/25/2010 opinion letter 903050:MCP – 3311/2010-339 at  

113 &  171-176 In  Florida Carry, Inc.  v.  Univ.  of North Florida, 38 Fla. L. Weekly D 2592 (Fla.  1DCA 2013), the appellate court held that only a “school district” may prohibit a securely encased firearm in a conveyance, and neither a college or university qualifies as a “school district”.  This confirms dicta in an earlier decision out of the Fourth District, and firmly establishes that you may have a securely encased firearm in your vehicle on any college or university campus in Florida despite any conflicting rule.   Obviously,   this should also apply to any other type “school” not run by and in a “school district”.

187-188 Visa Waiver program entrants are not considered “non-immigrant aliens” and therefore can rent or use firearms in the United States, and purchase ammunition anywhere.  However, they still cannot purchase a firearm (except for export) unless they qualify as a resident of a state.  Same for most citizens of Canada and Bermuda, unless they entered on a visa.   Entry into the United States is now online through ESTA, along with a passport.

204 While a backyard range is subject to any existing noise ordinances, once it goes into operation, any later noise ordinances cannot make it illegal or a nuisance.  Moreover, any new neighbors upset by a previously operating home or commercial range may not complain of noise issues.  Florida Statute 823.16
211 State v.  Caamano, 105 So. 3d 18 (Fla.  2DCA 2012), held that law enforcement officers are not entitled to claim immunity from criminal prosecution as to the amount of force used in making an arrest as such is totally determined  by Florida Statute 776.05.  

222 Brown v.  State, 113 So. 3d 103 (Fla.  5DCA 2013), merely reconfirms that a deadly weapon can be used without using deadly force, and the issue is usually a jury question.

236 It is now established that Florida Statute 776.012 works independent of 776.013.  Little v.  State, 111 So. 3d 214 (Fla.  2DCA 2013).   Unfortunately, legislative changes in 2014 contained in HB 89 have almost totally obliterated the distinctions, and substantially impaired the immunity protections that used to exist in 776.012.

249 Little v.  State, 104 So. 3d 1263 (Fla.  4DCA 2013), held that Florida Statute 790.25(n), allows open or concealed carry of a firearm in any "place of business" which is defined as "simply a location where business is transacted”, thus a union official was at his “place of business” and lawfully carrying concealed without a CWP when he was in the parking lot of the union hall he was visiting for union purposes.   Likewise, Santiago v.  State, 77 So. 3d 874 (Fla.  4DCA 2012), reaffirmed that a person may conceal carry without a CWP at their own residence premises.

259-261 State v.  Williams, 127 So. 3d 890 (Fla.  1DCA 2013), citing to prior case law held that a stray shot that caused injury to a bystander is not a criminal violation if done in lawful self defense against another.

262 CCW Safe,  Patriot Legal Protection, LLC, and Armed Citizens Legal Defense Network appear to offer the most protection for self defense situations – at least on paper.

308-310 Mobley v.  State, 39 Fla. L. Weekly D 64 (Fla 3DCA 2014), is probably one of the most important self defense cases involving the use of deadly force because of the fact pattern.  In that case the appellate court held that the defendant was entitled to SYG immunity where he and a friend were violently attacked by two individuals.  When the second man reached into his pocket the defendant believed he was reaching for a weapon and shot him dead.  The appellate court, in holding that the defendant was entitled to dismissal of the charges under SYG held that: (1) it is not necessary to give a warning before using self defense, and (2) that a citizen using deadly force need not see a weapon on the other individual so long as  a reasonably prudent person in those same circumstances and with the same knowledge of the defendant would have been justified in believing that, and therefore use that degree of force.

Chapter 11 HB 89 (Florida House Bill 89) passed into law in 2014 appears to have caused the following changes to self defense law:   (1) you can only threaten to use “deadly force” if the unlawful conduct you are attempting to prevent would allow you to actually use “deadly force”.  Otherwise, the most you can threaten is “non-deadly force”.   (2) Before using or threatening to use deadly force  – you must retreat (if you can do so in safety) if  you are not “in a place where you have a right to be”, or if you were involved in criminal conduct at the time self defense arose.

Thursday, July 10, 2014

Firearms in a Motorcycle saddlebag

A question about firearms and motorcycles:
by jon gutmacher

I was emailed a question that came up on a Facebook discussion on Florida Concealed Carry.  I took exception to the opinion by another attorney as to the validity of having a firearm "securely encased" in an affixed saddlebag.   From my standpoint -- which means my opinion -- the law is clear on the point, and allows it as "securely encased".  This was my analysis:

  • I totally disagree. Doughty v. State, 979 So. 2d 1048 (Fla 4DCA 2008), simply held that a fanny pack with a firearm inside while riding on a motorcycle was unlawful under 790.25(5) because it was "on the person" which is prohibited by that section, except as to CWP holders. Since a motorcycle is a "conveyance" per law -- it's "interior" would be anything other than it's "exterior", otherwise the only place you could store something "securely encased" would be inside the gas tank -- which is absurd, and would render the section meaningless to motorcycles, and exclude them without rational basis. Common sense and the Constitution would require that any compartments physically attached to a motorcycle such as within affixed saddlebags -- would become its "interior" as to their storage area. Of course, this would be different if the saddlebags were not mounted to the motorcycle. One warning -- a regular pedal bike -- is not a "conveyance", thus, a saddlebag on a pedal bike will always be prohibited unless with a CWP. Jon H. Gutmacher -- author -- Florida Firearms -- Law, Use & Ownership.
Hope that helps.

Tuesday, June 17, 2014

Abramski v. United States -- US Supreme Court 2014

There's been a lot of chatter on the June 16th 2014 decision of the United States Supreme Court in Abramski v. United States.   In a nutshell (probably an apt heading) -- Abramski was a former cop who purchased a handgun for his uncle.  The uncle reimbursed him for the cost of the gun,  and although both Abramski and his uncle were not prohibited from gun ownership, and there really wasn't any unlawful purpose in mind -- the feds prosecuted Abramski on the basis that he listed himself as the true purchaser on the federal Form 4473 when he bought the gun from a dealer.   Now,  if you've read my book -- you already figured out this was a big "no no" in federal land, and is considered a "straw purchase".  It may be stupid -- but the law is pretty damn clear.  You can't buy a gun for someone else -- unless it's a gift,  the person you're giving it to is not prohibited, and they reside in the same state you do.  And so -- the inevitable happened once some pen pusher decided the case was worthy of prosecution, and Abramski was convicted of a federal felony.  Probably the only question that anyone should be asking is why the hell the feds even bothered?  This was no big deal, and hardly worth the trouble. Lots of more important cases out there to spend your time on.  But again -- that's the feds.  No telling what the hell they'll do -- especially with Obama as President, and Eric Holder (uhhh!) as Attorney General.   Any wonder?

So . . . Abramski raises lots of interesting Second Amendment arguments -- many with substantial merit. And quite frankly,  he had four justices on his side.  But,  the argument that won -- and I guess makes sense even if nonsense in this case is:   If Abramski can say he's the actual purchaser -- why couldn't any person with criminal intent purchase through a friend -- and thereby thwart (or at least somewhat delay) finding the real owner if the gun is involved in a crime, and the government is trying to trace it?

Anyway -- that's the short stick on the case.  I don't think it's really news because the law was clear -- although it is a big disappointment for the expansion of the Second Amendment into an interpretation that suits "common sense" rather than just stupid laws.  For now -- stupid wins.  Watch your back -- and read my book.

Whatever.   That's my really quick report.  Have a good one.

Friday, December 20, 2013

Change in the law on "securely encased" for college campus parking

Let's all give a word of thanks to Florida Carry, Inc -- that sponsored the recent case of Florida Carry Inc. v. University of North Florida,  38 Fla. L. Weekly D2592 (Fla. 1DCA 2013), and their attorneys (Eric J. Friday, Lyman T. Fletcher, and Michael R. Phillips from Jacksonville), for a really important en banc decision from the First District Court of Appeal.  (en banc means the whole court -- not just the normal three judge panel).   In that case,  on December 10, 2013,  the First District held that post-secondary schools  (college, university) do not have the authority to restrict "securely encased" firearms within a vehicle on a college or university campus.   Thus -- despite any school regulations to the contrary -- it is now totally lawful to have a securely encased firearm in your vehicle -- parked or occupied -- on the grounds of a college or university in Florida.

Be warned -- this does not change the law as applied to "normal" schools such as an elementary, middle, or high school.  In that situation,  the School Board (not the local school -- only the School Board) may pass a "written and published" regulation that forbids possession in a vehicle on school property.  Thus,  if you see a warning sign when you pull up to a school that says something like "no firearms in vehicles" -- it might be wise not to have a firearm in the vehicle, even if securely encased.   [I actually believe there are several theories why this restriction is not correct, and can be gotten around -- but I'd rather pass on making those known -- since the idea isn't to make you a "test case", but is to keep you out of trouble with the law].

There's also a crack in the way things work with a private college, etc.  In that case, since they are not government funded,  they do not fall within the preemption law, and since any "school" covered in 790.115 is exempted from the parking lot law -- they can technically ban firearms from vehicles on their property, and discipline, suspend, or future trespass anyone who disobeys.   However -- they can't make it a crime.

By the way -- joining Florida Carry isn't a bad idea, and I encourage it.  They are the most pro-active organization in Florida that actually litigates important pro-gun issues.  Unfortunately,  they hate my guts since I'm not in favor of open carry, and therefore they'll have zero to do with me.  I think that's a bit of narrow thinking -- but nothing I haven't experienced before with other organizations.

Wednesday, December 11, 2013

CWP carry on school property in a vehicle

Can you conceal carry within a vehicle with a CWP at a school?

I received an email today from a reader who has the book, and saw an opinion that seemed contrary to mine on another attorney's website.

The other attorney did a thoughtful analysis -- and might be correct -- but to do so he's asking for a "test case" -- because in today's environment -- if a police officer finds you with a firearm on your person in a vehicle on school grounds -- CWP notwithstanding -- I think you're in for a problem.

If you're wondering why -- here's my analysis:    Florida law under 790.06(12) does not exclude carry on school "grounds" but does at a school "facility" or administration building.  Since "facility" is not defined, it leaves this as a "grey area" -- and you might be a "test case" on whether a "facility" includes school driveways.  Since most schools are fenced -- the fenced area stands a good chance of meeting the definition -- although a good faith argument could be made the other way around.  Still -- who wants to be a "test case"?

Likewise,  Florida Statute 790.115 fully covers what you can or can't do on school "property" -- which language would definitely include school "grounds".    That section only allows possession of a handgun in a vehicle "pursuant to 790.25(5) -- which requires all handguns to be "securely encased".   There is no exception for a CWP.   There can also be additional exclusions.

So -- while there are many arguments that can be made -- all in good faith -- my opinion is that the only "safe" way to carry in a vehicle -- is securely encased.   I'm not saying that's the only way it would be lawful.  I'm just saying that's the only "safe" way for it to be lawful.  Everything else would depend on the eventual "test case" outcome.

Of course,  if you want to give it a try, and can fork over ten grand for my fee, plus a few hundred more for your bond -- please let me know.