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| 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:
2011234
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 No license issued under pursuant to this section
50 does not shall authorize 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 career
72 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
17 comments:
This is F$*#@ng garbage! You’re going to push for relaxing gun laws and all you do is put together useless hoops and mazes that a lawful CCW holder has to think about when carrying. Seriously who passes this crap? You can't make a load of situational laws and think there’s some sort of benefit...it’s all or none in the gun game. Open carry is a no brainer that’s why the majority of the U.S., even Florida in years past allowed it. Haha accidental display what is this?...and then it goes to court and witnesses say you looked threatening when the wind blew! People are pathetic, the media paints a terrible picture for those who have firearms and carry them but they don’t say how many don’t get into trouble only that criminals use guns, guns kill people and without them it would be a safer world...BRAINWASHED!! There are approximately 1 million CCW permit holders in Florida, how many crimes involve these civilians and how many involve careless criminals? A question and an answer no one will acknowledge because of the impact of the truth. This is a minor step towards upholding the constitutional right to bear arms our founding fathers gave us. It’s a true shame we have to fight for the simple laws that worked so well for hundreds of years. Congrats NRA and CCW holders however there’s still much to accomplish.
OK CWP people…. Cancelled means CONCELLED!
If anyone sees your weapon it’s not cancelled anymore.
I have had a CWP for years and not once have I had an issue with an accidental display of my weapon.
Anyone who cannot keep his or her gun CONCELLED needs to leave it at home.
OH..and remember to practice ,practice ,practice...
If your gun is dusty and rusty..so are you!!
Mark
Jacksonville FL
My HK45 prints like an M16 in a wife beater but its in an IWB holster so, its concealed:)
I SERIOUSLY doubt one poster in here who said he's had a CWP for years. Accidental display can and does occur. My holster became loose as I was exiting my car. It was necessary for me to straighten it out, facing the interior of my car as I stood up. A man in another parked car saw this. He freaked out. I said" I have a CWP, would you like to see it?" to reassure him that i was not about to hold up the market. He said "No worries..if you didn't, you wouldn't have offered to let me see it." He then said he actually felt safer going in the market with me there. He was familiar with the law that stipulates one must be competent with a firearm as part of what it takes to get a CWP, and be a law-abiding citizen.
We have a neighbor who was convicted in Florida for improper exhibit dangerous weapon or firearm and now lives in Ohio. Can he sit on his deck and clean this firearm? We have at least 18 small chilren in this neighborhood. This scares me!!!
Displaying your gun in a "rude" manner? Now what does that honestly mean? Anyone? To the gun grabbing hippies, that means a loophole to seize your weapons and punish you.
Anyone who can't spell concealed should leave their weapon at home.
Hey Mark, I suggest you learn how to spell!
Now more than ever, it is critical Americans stand up for gun rights.
You can't fit a cop in your pocket, and the likelihood of one standing near you when you have 3 seconds to react, is null.
Good for Floridas law biding gun owners.
Hello, it is very disturbing to me that our tax paying dollars are being wasted on such nonsenes. It is obvious to me police officers still have the right to take someone to jail for accidental display. The new bill means nothing until you are infront of a prosecuter who, know has some way of helping you in court or beat the charge. If accidental display occurs, an arrest is made the poor CCW carrier is still subject to being taken in, booked, and maybe let go do to the new law, BIG DEAL, as police still determine whether or not your going to jail. This new law only helps by giving a prosecuter the power not to prosecute. This is not a victory at all!
Oath of office taken by member of Congress:
I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.
Oath of office taken by the president:
I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.
Here's my question; if anyone taking this oath who refuses to support and defend the 2nd amendment and actually tries to subvert it are they not violating that oath of office and therefore subject to removal from office? How can anyone swear (or affirm) to support and defend the constitution then attempt to subvert or abolish any part of it and still be honoring their oath? Have they not lied? Are they worthy of such an office and should they be removed office? Nowhere in the oaths does it say "except for the parts I don't agree with."
Last I heard america is a free country and if your a law abiding citizen and not a CRIMINAL and want to protect yourself with a firearm then you should be able too.....no questions...I know my grandfather would agree with me. EX P.O.W. Escaped from corregidor and over 30yrs in the military. I asked him about the guns and he said I wish everyone had one we would be safer!!
So the desires of the national police chiefs to get guns off the streets don't matter, eh?
I can remember when the fear-mongers on Fox had Obama taking away the rigths of fishermen too.
Grow up cowboys.
This is not really a victory for s CCP owners, however it pales in comparrison to the Federal government handing me an M4, sending me to third world countries to shoot the bad guys and then telling me I can't carry my personal weapon on post. I wish the jackasses that make these laws would realize that all they are doing is making us targets for violence. I mean honestly, I was en route to Ft. Hood when that numbnuts shot all those people, and just out of curiosity, if soldiers were allowed to carry their personal weapons on them, how many lives might have been saved that day not waiting for the MP's to show up??? Now we have to go through this "active shooter" training which tells you to "run and hide" in the event of an active shooter in the building... its BS. I wish lawmakers would pull their heads out of their arses and realize that from a criminals perspective, if the room is full of people with guns on their hips maybe it wouldn't be such a good idea to hold the place up or go on a shooting spree... Just my .02 cents!
The guns on the street are not the legal ones. Getting them off the street is not what any of these new proposed laws will accomplish. They only take guns from law abiding citizens.
Now go hug a tree and leave the protection of life, liberty and the persuit of happiness to real patriots.
Anonymous above ended a sentence above with, eh.
All I can say is go home where you belong
Hello Jason and Leslie, thanks for posting useful information on your website. Might I offer an improvement?
Laws can and do change, sometimes more than once in the course of a year (ex. court cases as they go from Appellate Court conflicts to Supreme Court and/or legislative).
Could you please put DATES on each posted item, so we can see which is the most recent, and therefore, the law that's currently in effect?
Many thanks,
SammisFan
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