Monday, February 20, 2012

Waiting period for firearm sales -- my interpretation

On November 28, 2011,  AFT published an "Open Letter to all Federal Firearm Licensees" in Florida concerning the preemption law, and its application to a number of  county ordinances that required a five day waiting period on sales of all firearms.  The ATF letter advised the ordinances were lawful.  However,  I think the letter was "dead wrong"-- and I take serious exception to that interpretation.   Because of that,  I have just drafted a letter to AFT, as follows:
---------------------------------------------------

Arthur Herbert,   Assistant Director
BATFE –  Enforcement Programs and Services
99 New York Avenue,  N.E.
Washington,  D.C.  20226

Re: Open letter to all federal firearm licensees
Dated:  11/28/2011

Dear Mr.  Herbert:

As an attorney specializing in the area of firearm laws and regulations, and a writer in the field,  I have recently had a number of inquiries concerning the above “open letter”, and its correctness under Florida law.  It is my opinion that the “open letter” is incorrect, and should be withdrawn or corrected on the ATF website on the following basis:

Fla.  Const.  Art VIII, section 5(b), allows a county to pass an ordinance requiring a criminal history records check and waiting period between 3-5 days on any “sale” of any firearm within such county – only  where “any part of the transaction is conducted on property to which the public has the right of access.”  (emphasis added).   The history of the provision indicates it was primarily intended to apply to gun shows conducted on public property.

Of course,  the public has a “right of access” only to public property.   Sales of firearms conducted wholly on private property do not grant the public a “right of access” – as such would ordinarily contemplate a trespass unless there was an (actual or implied) invitation or license to enter.  Thus, while a retail store is normally “open to the public”, there is no public “right” of access.  Only a limited invitation to enter as a licensee or invitee – and in conformity to whatever regulations the retailer might require.

While there is no Florida appellate case concerning this issue at this time – it is also my opinion that enforcement of such an ordinance against a retailer would be a violation of Florida’s preemption law,  and subject the county to liability for damages, costs, and attorney fees.  Of course,  the ideal method to determine the issue would be a declaratory action before the Florida courts – but until and unless that happens – the “Open Letter” of November 28, 2011,  should be withdrawn – or at the very least – it should be noted that the issue is unresolved as to whether it applies to sales wholly conducted on private property.

Respectfully,
Jon H. Gutmacher
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Now,  you should know (it's on page 14 of the 7th edition) that if I am correct -- the Florida Constitution still requires a three day waiting period on sales of handguns at retail.  And,  likewise -- a county could still enforce a five day waiting period on sales of ANY firearm on public property.  But, sales of rifles and shotguns at retail stores should be off limits to any county ordinance -- and any attempt to enforce such a restriction should be subject to an action for damages, costs, and attorney fees under the new provisions in the preemption law.

So . . .  do I recommend a gun store ignore such a county ordinance?

No!  That would be foolish -- especially as ATF currently has an "Open Letter" that complicates the entire matter.  What needs to be done is for a number of gun stores or trade associations to join together and challenge such an ordinance in court.  That would be the smart way to handle it.  Plus -- if you win, you should get your costs and attorney fees back.

But for now -- the issue is unsettled.   I've got my opinion.  The counties have their opinion.  ATF has its opinion.  And as usual -- the rest of us are screwed until something is actually done about it.
//


Saturday, February 18, 2012

Estate sale of firearms and machine guns

I received an email asking what the law was on an estate sale of firearms -- especially if it was thru an auctioneer.  The law is that the estate sells as a private individual -- thus, the administrator of the estate may lawfully sell all weapons without the NICS check, although it is a good idea to do a bill of sale, and make sure you've checked the driver's license, and asked if they are "prohibited" in any way.  Obviously,  don't sell if they are from out of state, or prohibited.  If an auctioneer does the sale -- he or she is also selling "for the estate" unless the firearms were actually sold to him.  An auction of firearms not on behalf of an estate, or not by the actual owner does require an FFL.   As always,   NFA weapons can be held by the administrator only -- and only transferred after the approval is obtained from ATF.  A transfer prior to the approval means you've just committed a felony, and the NFA firearm has just become contraband.  Only the administrator should have possession of the NFA firearm, and it should not be handled by anyone else except in the actual physical presence of the administrator.

Interesting, huh?

Monday, February 13, 2012

Law Enforcement Officers Safety Act -- 15 USC 926B

I was recently emailed a rather insightful question whether the Concealed Weapons Statute [790.06] restricted retired law enforcement officers under the Law Enforcement Officers Safety Act  [15 USC 926B] [ie: hereinafter referred to as the "LEOSA"].  In my opinion, the answer is clearly "no" -- because 790.06 was never meant to apply to that federal exemption.  On the other hand,  the question really raises some issues that are probably not that well understood -- and should be:

First,  the federal law does NOT change any restrictions imposed by FEDERAL law -- only State law!  All federal restrictions that might apply to where you can carry concealed or otherwise -- will still apply!

Second -- the federal law makes it clear that if State law permits private persons and entities (ie: non-government) to restrict who can carry concealed on their property --- the federal law does NOT override that!  Since the trespass laws in Florida have always been that the property owner has the right to enforce any rules they want (as long as not discriminating against age, sex, nationality, religion, race) -- a private property owner who makes it clear they don't want concealed weapons on their property -- has the total right to do so under the federal law.

Third --  My main bitch on the federal law and Florida's preemption law -- the LEOSA applies only to "firearms" -- not any other type of weapons.

Fourth --  The federal law makes it clear that a State law that prohibits or restricts possession of firearms on any type of government property -- still applies to retired and current law enforcement officers.

Fifth -- Make damn sure you're carrying proper i/d as required by the LEOSA -- because that's supposedly a predicate to lawful carry under the federal statute.


So . . . hopefully, that clears up the question.

Tuesday, February 7, 2012

Right, again!

Well . . .  what I've been saying since 1993 has finally been echoed, word-for-word,  in an appellate court opinion.   "the concealed weapons law does not apply to weapons in one's own home."  So -- how did this case and holding come about?

The case is,  Santiago v. State,  37 Fla Law Weekly D161  (Fla. 4DCA 2012),  decided in January 2012 by the Fourth District Court of Appeal.   In that case the defendant was arrested for having a concealed firearm in his own home.  (there were other charges not relevant to this discussion).   The theory of the prosecution was that since other people were in his home,  the law prohibited such carry without a CWP!   The trial judge instructed the jury (because even the jury was having a problem believing what was being argued to them and asked for clarification) that having a concealed firearm in your own home was illegal if other people were in the home!!!  

Absurd!!!

Of course -- the jury then came back "guilty" on the concealed firearm charge -- because they had no choice.  The judge instructed them to do that!   And just  as quickly -- the appellate court reversed the conviction stating that the law on this subject was crystal clear since 1973 that the concealed weapons law did not apply to persons in their own home, or at their business premises!  An excellent decision on a very clear point of law.    However . . .  that's not what this short article is all about.  It's the warning I keep giving everyone -- time and time again:   Just because you and I know the law -- doesn't mean that anybody else does -- and that includes cops, prosecutors, and  (inexcusably) even trial judges!!!

Remember -- this case wasn't about anything novel -- it was basic -- BASIC -- firearms law!   The fact that  the arresting officers did not understand this most basic point is sad -- but not unusual.  But, how the hell does it also go over the heads of the people in the State Attorney's Office who filed the charge . . . and the trial prosecutor . . .  and to top it off . . .  the trial judge?   Especially -- as the defense attorney is telling them they're wrong, and showing them the law!!!   How can all of them be so ignorant???  How can they all ignore the obvious???   Why the heck does a case this simple . . . have to go all the way to an appellate court to get the right decision???

The answer is:   There are just a lot of people out there who are supposed to know about your rights and the law -- who don't know squat -- and seem to care less!  Amazing!

So . . .  here's my warning, and why I tell people to always err on the side of caution:   With rare exception, the only people who really know the law on firearms, weapons, and self defense in Florida -- are the people who've read my book!  If you've read it -- you know more about the law in this area that the police, prosecutors, and judges in this State.   And -- that should scare you!

So . . .  hope you learned something . . .
Have a great day!