So...You CAN Open Carry in Florida - to an extent

[AWorthyOpponent]

Given the latest post getting us to sign a petition trying to amend the law, allowing people to Open Carry in Florida. Normally I wouldn't waste my time making this post because only 3-4 people would comment on it, but I was bored and figured I soothe my senses...so here goes...

Theoretically...

I know that in the state of Florida, 790.053 (LINK TO STATUTE HERE) prohibits open carry "Except as otherwise provided by law". Now if you take a look at 790.25 Lawful ownership, possession, and use of firearms and other weapons (LINK TO STATUTE HERE), you see under section (3):

(3) LAWFUL USES.--The provisions of ss. 790.053 and 790.06 do not apply in the following instances, and, despite such sections, it is lawful for the following persons to own, possess, and lawfully use firearms and other weapons, ammunition, and supplies for lawful purposes:

This basically shows that anything under this section makes 790.053 null and void. Please put up with me as I go through this using my own logic...

(d) Sheriffs, marshals, prison or jail wardens, police officers, Florida highway patrol officers, game wardens, revenue officers, forest officials, special officers appointed under the provisions of chapter 354, and other peace and law enforcement officers and their deputies and assistants and full-time paid peace officers of other states and of the Federal Government who are carrying out official duties while in this state;

This obviously makes it legal for LEO's to open carry. (a)(b)and(c) also permit military or emergency management people to open carry "when training or preparing themselves for military duty, or while subject to recall or mobilization"

(g) Regularly enrolled members of any organization duly authorized to purchase or receive weapons from the United States or from this state, or regularly enrolled members of clubs organized for target, skeet, or trap shooting, while at or going to or from shooting practice; or regularly enrolled members of clubs organized for modern or antique firearms collecting, while such members are at or going to or from their collectors' gun shows, conventions, or exhibits;

Does this mean that if I am on my way to my IDPA competition, or private club's range, that I can openly carry? I understand that this would only truly entail getting to and from the car at your house because if you were to stop for ammo at say Wal-Mart, then you would be on your way to or from Wal-Mart.

(h) A person engaged in fishing, camping, or lawful hunting or going to or returning from a fishing, camping, or lawful hunting expedition;

Doesn't this mean that if I'm going camping in the woods, that I can openly carry while out there in the woods? Couldn't I openly carry on my boat while fishing in a lake or the ocean, or even at the pier while fishing? Further more, and i know this is really a stretch, but it doesn't say what kind of camping. Maybe they meant camping out for the early bird deals on the day after thanksgiving. Maybe its just when you're primitive camping. Who knows...I'm just throwing out thoughts...

(j) A person firing weapons for testing or target practice under safe conditions and in a safe place not prohibited by law or going to or from such place;

Similar to (g), wouldn't this mean that if you're going to or from the range, you could open carry.

(l) A person traveling by private conveyance when the weapon is securely encased or in a public conveyance when the weapon is securely encased and not in the person's manual possession;

This one gets a little tricky, beacuse we do not know the proper definition of securely encased...lets take a look at 790.001(17)

(17) "Securely encased" means in a glove compartment, whether or not locked; snapped in a holster; in a gun case, whether or not locked; in a zippered gun case; or in a closed box or container which requires a lid or cover to be opened for access.

Given that "Securely encased" includes "snapped in a holster", wouldn't this always allow a person traveling in a vehicle the option to open carry given that his/her holster has a snap or retention device of some kind?

(n) A person possessing arms at his or her home or place of business;

As im sure we all know, this allows us to openly carry at our homes, on our property, and at our place of business (given that you are the owner, or the owner of the business allows you to)



Now, I know that open carry is illegal in Florida, but wouldn't this allow us to at least begin open carrying? Does anyone know of any case law, or any other laws that would limit any of these? I know that it seems black and white to me, but I'm also aware that its never cut and dry like that. There's always a gray area. But like I said, wouldnt this atleast begin to open a door or two for us? Maybe something that could give us some leverage?

 

[AWorthyOpponent]

(l) A person traveling by private conveyance when the weapon is securely encased or in a public conveyance when the weapon is securely encased and not in the person's manual possession;

Wouldn't this also make it legal to concealed carry a firearm since it also makes the laws of 790.06 (License to carry concealed weapon or firearm) null and void?

 

[brboyer]

Given the latest post getting us to sign a petition trying to amend the law, allowing people to Open Carry in Florida. Normally I wouldn't waste my time making this post because only 3-4 people would comment on it, but I was bored and figured I soothe my senses...so here goes...

Theoretically...

I know that in the state of Florida, 790.053 (LINK TO STATUTE HERE) prohibits open carry "Except as otherwise provided by law". Now if you take a look at 790.25 Lawful ownership, possession, and use of firearms and other weapons (LINK TO STATUTE HERE), you see under section (3):

(3) LAWFUL USES.--The provisions of ss. 790.053 and 790.06 do not apply in the following instances, and, despite such sections, it is lawful for the following persons to own, possess, and lawfully use firearms and other weapons, ammunition, and supplies for lawful purposes:

This basically shows that anything under this section makes 790.053 null and void. Please put up with me as I go through this using my own logic...

(d) Sheriffs, marshals, prison or jail wardens, police officers, Florida highway patrol officers, game wardens, revenue officers, forest officials, special officers appointed under the provisions of chapter 354, and other peace and law enforcement officers and their deputies and assistants and full-time paid peace officers of other states and of the Federal Government who are carrying out official duties while in this state;

This obviously makes it legal for LEO's to open carry. (a)(b)and(c) also permit military or emergency management people to open carry "when training or preparing themselves for military duty, or while subject to recall or mobilization"
Correct

(g) Regularly enrolled members of any organization duly authorized to purchase or receive weapons from the United States or from this state, or regularly enrolled members of clubs organized for target, skeet, or trap shooting, while at or going to or from shooting practice; or regularly enrolled members of clubs organized for modern or antique firearms collecting, while such members are at or going to or from their collectors' gun shows, conventions, or exhibits;

Does this mean that if I am on my way to my IDPA competition, or private club's range, that I can openly carry? I understand that this would only truly entail getting to and from the car at your house because if you were to stop for ammo at say Wal-Mart, then you would be on your way to or from Wal-Mart.
Yes you can open carry on your way to or from....no court cases yet to define what exactly what to or from means yet.

(h) A person engaged in fishing, camping, or lawful hunting or going to or returning from a fishing, camping, or lawful hunting expedition;

Doesn't this mean that if I'm going camping in the woods, that I can openly carry while out there in the woods? Couldn't I openly carry on my boat while fishing in a lake or the ocean, or even at the pier while fishing? Further more, and i know this is really a stretch, but it doesn't say what kind of camping. Maybe they meant camping out for the early bird deals on the day after thanksgiving. Maybe its just when you're primitive camping. Who knows...I'm just throwing out thoughts...
Yes you can Open carry while camping. Yes you can Open carry on your boat if you are fishing or going to or from. Yes you can Open carry on the pier. I doubt any LEO or SA or Judge or Jury will accept 'camping' out for early bird specials.

(j) A person firing weapons for testing or target practice under safe conditions and in a safe place not prohibited by law or going to or from such place;

Similar to (g), wouldn't this mean that if you're going to or from the range, you could open carry.
Yes you can Open carry going to and from the range.

(l) A person traveling by private conveyance when the weapon is securely encased or in a public conveyance when the weapon is securely encased and not in the person's manual possession;

This one gets a little tricky, because we do not know the proper definition of securely encased...lets take a look at 790.001(17)

(17) "Securely encased" means in a glove compartment, whether or not locked; snapped in a holster; in a gun case, whether or not locked; in a zippered gun case; or in a closed box or container which requires a lid or cover to be opened for access.

Given that "Securely encased" includes "snapped in a holster", wouldn't this always allow a person traveling in a vehicle the option to open carry given that his/her holster has a snap or retention device of some kind?
No you cannot Open carry on your person in your car (unless you are going to or from one of the other activities). Several court cases have agreed that 'Securely Encased' also means no "On or about your person".

(n) A person possessing arms at his or her home or place of business;

As im sure we all know, this allows us to openly carry at our homes, on our property, and at our place of business (given that you are the owner, or the owner of the business allows you to)

You cannot Open carry on property you own that is not your home. Like some rental property you own or the 10 acres you own up in the Panhandle. "At your home" has been given the meaning by the courts "in your home, on the property you own surrounding your home, and in any other buildings that may be present on the property you own surrounding your home. Also your hotel/motel room, apartment, RV while parked, tent (but that is already covered under camping), or any other temporary structure that you are 'living' in.
Several court cases have also agreed that you do not need permission to Open carry, or Conceal Carry without a license while at work.



Now, I know that open carry is illegal in Florida, but wouldn't this allow us to at least begin open carrying? Does anyone know of any case law, or any other laws that would limit any of these? I know that it seems black and white to me, but I'm also aware that its never cut and dry like that. There's always a gray area. But like I said, wouldnt this atleast begin to open a door or two for us? Maybe something that could give us some leverage?

Many people do these things every day. Most of it is cut and dry (with the noted exception of what "to and from" actually means. Since we have no court cases, this means no one has been arrested, convicted and appealed it since it went into effect in 1987 or so.

 

[brboyer]

(l) A person traveling by private conveyance when the weapon is securely encased or in a public conveyance when the weapon is securely encased and not in the person's manual possession;

Wouldn't this also make it legal to concealed carry a firearm since it also makes the laws of 790.06 (License to carry concealed weapon or firearm) null and void?

Yes, almost. It still has to be securely encased (meaning, not on your person).....So now we need to look at 790.25(5) for the answer, because the Florida Legislature really, really, really sucks at writing laws:

(5) POSSESSION IN PRIVATE CONVEYANCE.--Notwithstanding subsection (2), it is lawful and is not a violation of s. 790.01 for a person 18 years of age or older to possess a concealed firearm or other weapon for self-defense or other lawful purpose within the interior of a private conveyance, without a license, if the firearm or other weapon is securely encased or is otherwise not readily accessible for immediate use. Nothing herein contained prohibits the carrying of a legal firearm other than a handgun anywhere in a private conveyance when such firearm is being carried for a lawful use. Nothing herein contained shall be construed to authorize the carrying of a concealed firearm or other weapon on the person. This subsection shall be liberally construed in favor of the lawful use, ownership, and possession of firearms and other weapons, including lawful self-defense as provided in s. 776.012.

This is an issue for motorcycle riders because of "within the interior of a private conveyance"

It it very difficult to place a pistol within the interior of a motorcycle. Many guys, without CWFL, just resort to keeping it in a backpack. This is illegal and has been upheld in several court cases.

 

[Packman]

I agree, there are a number of places you CAN open carry. But, they're fairly restrictive, really. Say you're going camping...You're most likely either on private property with the landowners permission, in which case you're already exempted, or you're on public land. Now, you WOULD be ok to open carry on the public land...except a lot of Florida's public land is posted as "no firearms." Meaning, regardless of the actually legality of such signage, you're just inviting a whole heaping helping of trouble that'll ruin your camping trip.

brboyer also hit the nail on the head concerning vehicles. If you want to have it in a holster (snapped) or the glove box, you're golden. Put in on your belt, and you're now "In manual possession." and therefore in trouble without a ccw.

It's definitely sort of a nebulous grey area, and that's why the petition would be nice if it were to result in the law prohibiting OC being rescinded.

 

[Dave P]

I always like the fishing exemption - doesn't everybody have a fishin pole in the bed of their truck?!? And I say that you can also open carry on the beach while you are surf fishing.

 

[Dave P]

broyer - you can't be serious: "You cannot Open carry on property you own that is not your home. "

Can you point to some case like this???

 

[brboyer]

I agree, there are a number of places you CAN open carry. But, they're fairly restrictive, really. Say you're going camping...You're most likely either on private property with the landowners permission, in which case you're already exempted, or you're on public land. Now, you WOULD be ok to open carry on the public land...except a lot of Florida's public land is posted as "no firearms." Meaning, regardless of the actually legality of such signage, you're just inviting a whole heaping helping of trouble that'll ruin your camping trip.

brboyer also hit the nail on the head concerning vehicles. If you want to have it in a holster (snapped) or the glove box, you're golden. Put in on your belt, and you're now "In manual possession." and therefore in trouble without a ccw.

It's definitely sort of a nebulous grey area, and that's why the petition would be nice if it were to result in the law prohibiting OC being rescinded.

uh, no. It is the fact that you are camping that provides the exception to the general prohibition on Open carry. A property owner cannot authorize anyone to Open carry on his property any more than he can authorize anyone to commit rape or grow marijuana on his property.

As for the "No Firearms" signs; on private property, I ignore them as they carry no legal weight. As to the signs on public property, they are actually illegal and in violation on 790.33. I ignore those as well. (I am referring to lawful carry locations, not locations restricted in 790.06(12) or other applicable statutes)

Several members (including a couple are attorney's) on floridaconcealedcarry.com have been addressing theses unlawful signs (and their associated unlawful ordinances) with local county and city governments

 

[Packman]

uh, no. It is the fact that you are camping that provides the exception to the general prohibition on Open carry. A property owner cannot authorize anyone to Open carry on his property any more than he can authorize anyone to commit rape or grow marijuana on his property.

Please provide some manner of documentation for this one. Committing rape and growing marijuana are inherently illegal, whereas open carry is a specifically legalized activity under certain conditions. According to your logic, if I have a friend with a 10,000 acre ranch (I do) and they have a range on their property (they do), then it would be totally legal for them to walk about their property open carrying. HOWEVER, if they invite me over to go shooting with them, I'd be breaking the law to put my gun in a holster for the walk from the truck to the range?

I think not. On private property with the landowner's permission, open carry is legal. Otherwise, every employee at every gunshop I've ever been in is breaking the law. With the amount of times I've seen cops in gunstores, I'd think they'd have probably arrested them by now.

Not trying to call you out, but I'd really like to see some manner of doctrine on this one if you're right.

 

[brboyer]

Please provide some manner of documentation for this one. Committing rape and growing marijuana are inherently illegal, whereas open carry is a specifically legalized activity under certain conditions. According to your logic, if I have a friend with a 10,000 acre ranch (I do) and they have a range on their property (they do), then it would be totally legal for them to walk about their property open carrying. HOWEVER, if they invite me over to go shooting with them, I'd be breaking the law to put my gun in a holster for the walk from the truck to the range?

I think not. On private property with the landowner's permission, open carry is legal. Otherwise, every employee at every gunshop I've ever been in is breaking the law. With the amount of times I've seen cops in gunstores, I'd think they'd have probably arrested them by now.

Not trying to call you out, but I'd really like to see some manner of doctrine on this one if you're right.

whereas open carry is a specifically legalized activity under certain conditions

Correct, but Open carry on someone else's property is not one of them.

According to your logic, if I have a friend with a 10,000 acre ranch (I do) and they have a range on their property (they do), then it would be totally legal for them to walk about their property open carrying. HOWEVER, if they invite me over to go shooting with them, I'd be breaking the law to put my gun in a holster for the walk from the truck to the range?

Nope, that's legal, as there is an exception to the prohibition in 790.053 that says you can open carry when target practicing. 790.25(3)(j)

A person firing weapons for testing or target practice under safe conditions and in a safe place not prohibited by law or going to or from such place

Otherwise, every employee at every gunshop I've ever been in is breaking the law.

Well, you see there is another exception to 790.053 that allows employees to carry at work: 790.25(3)(n), it's the same one that allows you to open carry at your own home.

A person possessing arms at his or her home or place of business

There is also a court case that addresses this. The case is about unlicensed concealed carry, but it's the same statute:
STATE v. Milton Angelo PAULK
No. 90-2598.
District Court of Appeal of Florida, Fifth District.
October 31, 1991.

It appears to us that the exemption from 790.053 and 790.06 created by 790.25(3)(n) is specifically limited to that person's own home or place of business. The provision "his" used by the Legislature must be given its ordinary meaning.
. . .
It clearly means "hers" as well as "his"; but it cannot also be stretched to mean "anyone Else's" residence or place of business.

Can I answer any other questions you may have about Florida firearms laws?

 

[brboyer]

broyer - you can't be serious: "You cannot Open carry on property you own that is not your home. "

Can you point to some case like this???

I thought I kept a link to the one a read, but cannot locate it right now.

I seriously doubt that you would get arrested for this unless there were some extenuating circumstances, but I can see it as an add-on charge.

Just keep a fishing pole and/or tent with you and you're golden.

 

[Packman]

Sir, I believe perhaps I shall simply have to respectfully agree to disagree with you. I would be curious to hear an attorney's input on the matter.

 

[AWorthyOpponent]

One of the main reasons that I brought this up is because I plan on going camping sometime in the near future. Many of the state parks have a sign that reads "NO FIREARMS" or something like that. It would be an inconvenience to ccw, and I would like to oc while there.

I called one of the state parks and the man that answered stated that I'll "probably be visited by some not too friendly animals" if I don't clean up my trash. I said that I don't worry about that, referring to the trash, and he immediately said "Sorry. No firearms in the park open or concealed." I told him I was talking about the trash and he was like "good. I wouldn't want to have to take anyone to jail." Now I am a bit of a city boy. I'm not going primitive camping without some "backup" - so to speak.

I always make sure I'm educated in an area before opening my mouth or doing something, and that usually includes printing statutes (and speaking with a lawyer) related to what I'm doing (i.e. open carry while camping) just in case I am stopped by someone, LEO or otherwise, for any reason.

 

[brboyer]

One of the main reasons that I brought this up is because I plan on going camping sometime in the near future. Many of the state parks have a sign that reads "NO FIREARMS" or something like that. It would be an inconvenience to ccw, and I would like to oc while there.

I called one of the state parks and the man that answered stated that I'll "probably be visited by some not too friendly animals" if I don't clean up my trash. I said that I don't worry about that, referring to the trash, and he immediately said "Sorry. No firearms in the park open or concealed." I told him I was talking about the trash and he was like "good. I wouldn't want to have to take anyone to jail." Now I am a bit of a city boy. I'm not going primitive camping without some "backup" - so to speak.

I always make sure I'm educated in an area before opening my mouth or doing something, and that usually includes printing statutes (and speaking with a lawyer) related to what I'm doing (i.e. open carry while camping) just in case I am stopped by someone, LEO or otherwise, for any reason.

Here is the text one of our members received back in January after a couple lawyers got involved in the open carry situation in state parks:

Dear Mr. xxxxx,
I wanted to let you know the following is being promulgated to the Florida Department of Environmental Protection:

“Effective immediately, the Department of Environmental Protection will comport with section 790.25(3)(h), Florida Statutes. This will allow persons visiting the state parks to lawfully display firearms while they are engaged in fishing, or camping or going to or returning from a fishing, camping, or lawful hunting expedition. Park visitors are reminded to properly store firearms while not engaged in the above activities.”
Sincerely,
Douglas Darling
Chief of Staff

 

[brboyer]

Sir, I believe perhaps I shall simply have to respectfully agree to disagree with you. I would be curious to hear an attorney's input on the matter.

OK, so I suppose the actual quote

It clearly means "hers" as well as "his"; but it cannot also be stretched to mean "anyone Else's" residence or place of business

from the 5th District Court of Appeals is not good enough for you? You understand that this comes from Judges, right? You know those guys that are empowered to interpret the laws of the state!

 

[Dave P]

boyer - thanks for the feedback. I have a second home in N FLA and would not hesitate to OC there when I desire. And FWIW, I do a bit of shooting off my front porch too!

Are you a lawyer??

I like this advise: : "Just keep a fishing pole and/or tent with you and you're golden. " I always carry a Popeil Pocket Fisherman in my left pocket, while the 44mag is on my right hip !! LOL Oh, and the Randall 14" Bowie in there someplace too!

Dave

 

[brboyer]

boyer - thanks for the feedback. I have a second home in N FLA and would not hesitate to OC there when I desire. And FWIW, I do a bit of shooting off my front porch too!

Are you a lawyer??

I like this advise: : "Just keep a fishing pole and/or tent with you and you're golden. " I always carry a Popeil Pocket Fisherman in my left pocket, while the 44mag is on my right hip !! LOL Oh, and the Randall 14" Bowie in there someplace too!

Dave

Nope, not a lawyer. I just had to really understand the firearms law due to certain situations I found myself in. - I spent a lot of time in schools (both High School and at USF) in certain advisory positions I've held. Then with some interactions I had with Law Enforcement agencies, I just needed to understand it all. So I spent a year or two doing research, talking to Attorneys, Law Enforcement, Judges, State Attorney's, researching court cases, etc.


P.S. I just now realized that my signature line was not being displayed, I've fixed that.