|Florida's New Firearm Laws|
The Florida Senate passed two important bills that protect citizens from unfair prosecutions related to the possession of a firearm. This new legislation gives advocates for gun rights throughout Florida reason to celebrate.
- House Bill 45, which was substituted for Senate Bill 402 based by a 30-8 margin. This bill prohibits local governments from passing their own patchwork of gun laws that would vary from one part of the state to another. This bill has already passed and is waiting to be signed by Governor Rick Scott. Gun rights advocates consider this bill an important piece of legislation that prevents unfair prosecutions as individuals travel from one part of the state to another. Individuals are often unaware of small difference in the laws related to firearm possession in various cities or counties throughout the state.
- Senate Bill 234, known as the "accidental display bill" provides a defense to the second degree misdemeanor offense of carrying a firearm in open view under Florida Statute Section 790.053 and may possibly impact the first degree misdemeanor of improper exhibition of a firearm. The bill was approved by a margin of 26-11. This bill started off as an "open carry” law but was watered down to decriminalize the accidental showing of a concealed weapon. Although the bill was watered down, it may still provides a very important protection against Florida's broad statute concerning the "improper" exhibition of a firearm.
We all know that Florida law allows a person who possesses a valid permit to carry a "concealed" weapon. Many people do not realize that it is a first degree misdemeanor to "carelessly" exhibit the firearm to another. This misdemeanor crime is one of the most commonly prosecuted firearm charge in Florida, although it is unclear how many times these prosecutions involve careless acts as opposed to intentional acts since the statute allows either.
Florida Statute Section 790.10 is entitled, "improper exhibition of dangerous weapons or firearms." The statute provides as follows:
"if any person having or carrying any . . . weapon shall, in the presence of one or more (other) persons, exhibit the same in a rude, careless, angry or threatening manner, not in necessary self defense, the person so offending shall be guilty of a misdemeanor of the first degree".Florida's New Law on Carrying Firearm in Open View
The new statutory language provides:
1 2 An act relating to firearms; amending s. 790.053, 3 F.S.; providing that a person who is licensed to carry 4 a concealed firearm is not in violation of law if the 5 firearm is briefly and openly displayed under certain 6 circumstances; amending s. 790.06, F.S.; allowing the 7 Division of Licensing of the Department of Agriculture 8 and Consumer Services to take fingerprints from 9 concealed carry license applicants; providing that a 10 person may not openly carry a weapon or firearm or 11 carry a concealed weapon or firearm into specified 12 locations; providing that concealed carry licensees 13 shall not be prohibited from carrying or storing a 14 firearm in a vehicle for lawful purposes; providing 15 that a provision limiting the scope of a license to 16 carry a concealed weapon or firearm does not modify 17 certain exceptions to prohibited acts with respect to 18 a person’s right to keep and bear arms in motor 19 vehicles for certain purposes; repealing s. 790.28, 20 F.S., relating to the purchase of rifles and shotguns 21 in contiguous states; amending s. 790.065, F.S.; 22 providing that specified provisions do not apply to 23 certain firearms transactions by a resident of this 24 state; providing an effective date. 25 26 Be It Enacted by the Legislature of the State of Florida: 27 28 Section 1. Subsection (1) of section 790.053, Florida 29 Statutes, is amended to read: 30 790.053 Open carrying of weapons.— 31 (1) Except as otherwise provided by law and in subsection 32 (2), it is unlawful for any person to openly carry on or about 33 his or her person any firearm or electric weapon or device. It 34 is not a violation of this section for a person licensed to 35 carry a concealed firearm as provided in s. 790.06(1), and who 36 is lawfully carrying a firearm in a concealed manner, to briefly 37 and openly display the firearm to the ordinary sight of another 38 person, unless the firearm is intentionally displayed in an 39 angry or threatening manner, not in necessary self-defense. 40 Section 2. Paragraph (c) of subsection (5) and subsection 41 (12) of section 790.06, Florida Statutes, are amended to read: 42 790.06 License to carry concealed weapon or firearm.— 43 (5) The applicant shall submit to the Department of 44 Agriculture and Consumer Services: 45 (c) A full set of fingerprints of the applicant 46 administered by a law enforcement agency or the Division of 47 Licensing of the Department of Agriculture and Consumer 48 Services. 49 (12)(a) A
Nolicense issued under pursuant tothis section 50 does not shallauthorize any person to openly carry a handgun or 51 carry a concealed weapon or firearm into: 52 1. Any place of nuisance as defined in s. 823.05; 53 2. Any police, sheriff, or highway patrol station; 54 3. Any detention facility, prison, or jail; 55 4. Any courthouse; 56 5. Any courtroom, except that nothing in this section would 57 preclude a judge from carrying a concealed weapon or determining 58 who will carry a concealed weapon in his or her courtroom; 59 6. Any polling place; 60 7. Any meeting of the governing body of a county, public 61 school district, municipality, or special district; 62 8. Any meeting of the Legislature or a committee thereof; 63 9. Any school, college, or professional athletic event not 64 related to firearms; 65 10. Any elementary or secondary school facility or 66 administration building; 67 11. Any career center; 68 12. Any portion of an establishment licensed to dispense 69 alcoholic beverages for consumption on the premises, which 70 portion of the establishment is primarily devoted to such 71 purpose; any elementary or secondary school facility; any career72 center;73 13. Any college or university facility unless the licensee 74 is a registered student, employee, or faculty member of such 75 college or university and the weapon is a stun gun or nonlethal 76 electric weapon or device designed solely for defensive purposes 77 and the weapon does not fire a dart or projectile; 78 14. The inside of the passenger terminal and sterile area 79 of any airport, provided that no person shall be prohibited from 80 carrying any legal firearm into the terminal, which firearm is 81 encased for shipment for purposes of checking such firearm as 82 baggage to be lawfully transported on any aircraft; or 83 15. Any place where the carrying of firearms is prohibited 84 by federal law. 85 (b) A person licensed under this section shall not be 86 prohibited from carrying or storing a firearm in a vehicle for 87 lawful purposes. 88 (c) This section does not modify the terms or conditions of 89 s. 790.251(7). 90 (d) Any person who knowingly and willfully violates any 91 provision of this subsection commits a misdemeanor of the second 92 degree, punishable as provided in s. 775.082 or s. 775.083.
When does a careless or inadvertent exhibition of a firearm occur?
So if a person is lawfully carrying a concealed weapon that is inadvertently displayed then the misdemeanor offense can be alleged and prosecuted. How would such an inadvertent display occur? Possible situations that could be impacted by this new legislation could include the following:
- A man has a firearm in a holster on his belt. The wind blows his jacket away from his body and a bystander sees the firearm on his belt and becomes concerned.
- A woman has a firearm in her purse. While standing in line in the grocery store the woman reaches into the purse to get a wallet and the person in line behind her sees the firearm in the bag and becomes concerned.
- A person with a concealed weapon repositions the weapon in a manner that makes it visible to another person.
- A person leaves a firearm in a bag that is within reach of a child or teenager and another person becomes concerned and calls the police.
Most criminal offenses in Florida require a showing that the person accused committed the act willfully, intentionally and with knowledge. The improper exhibition statute, however, allowed for the much lower showing that the person accused acted "carelessly." That determination of whether the defendant was careless or not in exhibiting the firearm might ultimately be decided by the jury at trial.
But even in questionable cases the individual could be arrested, driven to the jail, booked into the jail, required to post bond, forced to hire a criminal defense attorney, and then appear in court for pre-trial hearings in order to fight the criminal charge. If you think that overly aggressive prosecutions don't occur then think again. Prosecutors often say they have "no discretion" when it comes to firearms cases. Many prosecutors believe any firearm charge must be prosecuted aggressively.
Does Florida's Senate Bill 234 known as the "accidental display bill" really matter?
Although some may argue that "careless" exhibitions are rarely prosecuted, it is hard to imagine any "careless" exhibition that should be prosecuted if the person did not act willfully and with knowledge.
Case law indicates that the firearm must be displayed in a manner that a "reasonable person" might think they could get accidentally shot or in a manner that is "blatantly offensive." Who decides what conduct is "blantantly offensive"? Florida has very little case law that defines or limits this standard under particular factual situations.
These standards are difficult to apply in many circumstances. Law enforcement officers often make an arrest first and ask questions later, so by using a "careless" standards instead of a "willful" standard overly aggressive or selective prosecutions could occur.
What do you think of the proposed legislation?
It is already well-settled under Florida law that it is an affirmative defense if the weapon is displayed in the course of acting in lawful self-defense. What will the impact of this new legislation be on the prosecution of cases for an "accidental display" or "careless" exhibition of a firearm?
Leslie Sammis is a criminal defense attorney who represents men and women charged with improper exhibition of a weapon and other firearm crimes throughout the greater Tampa Bay area. Read more: firearm and weapon charges under Florida law.
Related Links: Florida's Senate Bill 234 known as the accidental display bill, Florida gun statutes and laws May 2011, Florida concealed weapon permit to carry, Florida gun laws waiting period - Florida Statute Section 790.001 provides for a three (3) day waiting period which does not include legal holidays or weekends. Minors, convicted felons, anyone convicted for abuse of controlled substance substance within last three years or anyone adjudicated incapacitated, anyone who has been committed to a mental institution, or anyone subject to a domestic violence or repeat violence injunction is not eligible to possess a firearm. Firearms may not be possessed on or near school grounds under Florida Statute Section 790.115 and 810.095. Florida's SB 1810 New DWI Law