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Florida "armed trespass" law

Discussion in 'Legal' started by Yoda, Nov 4, 2009.

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  1. Yoda

    Yoda Member

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    Back when I was a newbie, taking a CCW class, I thought I was told that you can safely ignore "no guns" signs in Florida malls and store, except that if the owner or his representative asks you to leave, you must leave immediately, with no debate or resistance.

    Now, I read Florida law on trespass, and it seems that if you carry a CCW in a store that has a "no guns" sign, you may be guilty of a felony, even BEFORE you are asked to leave, and even if you had no evil intent.

    Does anyone know any case law on this?

    - - - Yoda

    ============================

    Here's the Florida statute:

    810.08 Trespass in structure or conveyance.--

    (1) Whoever, without being authorized, licensed, or invited, willfully enters or remains in any structure or conveyance, or, having been authorized, licensed, or invited, is warned by the owner or lessee of the premises, or by a person authorized by the owner or lessee, to depart and refuses to do so, commits the offense of trespass in a structure or conveyance.

    (2)(a) Except as otherwise provided in this subsection, trespass in a structure or conveyance is a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

    (b) If there is a human being in the structure or conveyance at the time the offender trespassed, attempted to trespass, or was in the structure or conveyance, the trespass in a structure or conveyance is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

    (c) If the offender is armed with a firearm or other dangerous weapon, or arms himself or herself with such while in the structure or conveyance, the trespass in a structure or conveyance is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Any owner or person authorized by the owner may, for prosecution purposes, take into custody and detain, in a reasonable manner, for a reasonable length of time, any person when he or she reasonably believes that a violation of this paragraph has been or is being committed, and he or she reasonably believes that the person to be taken into custody and detained has committed or is committing such violation. In the event a person is taken into custody, a law enforcement officer shall be called as soon as is practicable after the person has been taken into custody. The taking into custody and detention by such person, if done in compliance with the requirements of this paragraph, shall not render such person criminally or civilly liable for false arrest, false imprisonment, or unlawful detention.

    (3) As used in this section, the term "person authorized" means any owner or lessee, or his or her agent, or any law enforcement officer whose department has received written authorization from the owner or lessee, or his or her agent, to communicate an order to depart the property in the case of a threat to public safety or welfare.

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  2. brboyer

    brboyer Member

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    Key word in this statute is "Invited". If the business is open, you are invited, someone must ask you to leave and you refuse before it becomes trespassing.

    I did read some cases earlier this year that support this statement, I'll see if I saved any links. But it is well settled.
     
  3. carebear

    carebear Member

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    If it is open to the public you are "authorized" to enter. By law the sign has no legal meaning and thus cannot, by itself, revoke that explicit authorization. You still have to be actually warned by the owner before the crime of "Trespass" occurs.

    Since it references an "offender" that means the "armed" aggravating component only applies after the standard for Trespass has been satisfied.

    Your instructor is correct. Assuming there isn't contradictory case law, which the instructor should be aware of, the plain reading of the statute reaffirms that you are ok to carry past the, legally meaningless, sign.
     
  4. Yoda

    Yoda Member

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    but...

    If there were a "no guns" sign, couldn't one argue that you were NOT invited?

    Not trying to be difficult, just safe.

    - - - Yoda
     
  5. carebear

    carebear Member

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    Reasonable question, but no.

    Absent an explicit statute to the contrary (as part of the CCW law in this case), civil rights law gives a sign no power to exclude anyone, invitation or authority are implicit on him being open to the public at all. If he wants to exclude some persons he has to exclude all persons, or perhaps set up a membership scheme (though I doubt he could use gun carriage as a basis for refusing membership).

    Per the trespass statute if he wants to deny service to someone he has to have them told in person by a person.
     
  6. NavyLCDR

    NavyLCDR member

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    Also, I would think in order for the sign to hold up at all it would have to apply to EVERYONE. Everyone would include the blind, those that don't speak English (or Spanish, or whatever other language the sign was written in), and those that can't read at all.

    Just my thoughts.
     
  7. divemedic

    divemedic Member

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    In order to be guilty of trespass, you must be asked to leave, and refuse to do so. Until such time as you ARE asked, you are still an invitee. There is currently no case law on this subject. I could not find one case where someone has been charged under these circumstances.

    I am an invitee upon the property, sign or no sign. After all, if I left the gun at home, I am an invitee. IMO, it is the gun that is not wanted, not me.
     
  8. NoAlibi

    NoAlibi Member

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    No Preemption

    I believe the Florida CCW statutes have a no preemption clause and they also specifically indicate where you may not carry a concealed firearm. Stores and malls open to the public are not included in that restriction, unless they serve alcohol for consumption on the premises.

    So if other state county, city and local jurisdictions cannot pre-empt the law why would you think that a store/mall owner could put up a sign and make a criminal out of you? I agree that if you are asked to leave then you must do so, but you also have a right not to go back there again as well.

    I have ignored those signs since 1983 and have not had a problem - yet. Being discreet is usually a good guideline.
     
  9. Sebastian the Ibis
    • Contributing Member

    Sebastian the Ibis Member

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    1. How is the proprietor going to know that you are armed in the first place?

    2. If the proprietor knows you are armed you screwed up something and you should be leaving if you are asked.

    3. You will probably have a couple minutes to be on your way before a police officer shows up, at this point you should have been gone.

    4. When the officer shows up he will most likely tell you to leave, so that he has personal knowledge of your refusal to leave and the State does not need the shopkeeper at trial, at this point you absolutely positively must leave.

    5. If you are still there and the cop arrests you and finds a weapon on you, you have no one to blame but yourself.
     
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