Florida Firearms – Law, Use & Ownership – cumulative update 7th edition only, for August 2014
copyright 2014 by jon h. gutmacher
Weeks v. State, 39 Fla. L. Weekly D 35 (Fla. 1DCA 2013), clarifies the mess created by the Bostic case. In Weeks, the appellate court held that only the firing or ignition mechanism of a gun determines whether it qualifies as an “ antique replica” or "antique firearm" regardless of the date of manufacture, or whether it has other features such as a scope. Thus, a black powder muzzle loader with a percussion cap firing system qualified as a “replica” with the court finding the statute is unconstitutionally vague as to what exactly a “replica” is not, and a felon could not be convicted for having such a gun. Conflict with the Bostic case was certified to the Florida Supreme Court. Thus for now, it depends in what part of Florida you live as to what an “antique” firearm is, or isn’t – at least until the Florida Supreme Court settles it.
Effective July 1, 2013, Florida Statute 790.065 has been amended by extending the definition of “committed to a mental institution” to include anyone admitted per the Baker Act for involuntary examination where the examining physician found the person to be an imminent danger to themself or another, and the person agrees to voluntary treatment after being furnished written notice that they may lose certain firearm and CWL rights if they agree. There are other requirements, and there is a court procedure to restore firearm rights upon proof that the person “will not be likely to act in a manner dangerous to the public safety, and the granting of relief would not be contrary to the public interest.”
The Florida Department of Agriculture, Division of Licensing website has changed to:
reciprocity – Iowa has been added, Washington deleted, and Pennsylvania only recognizes the Florida CWL for actual Florida residents.
Correction: BATFE has determined that any smooth bore insert fitted into an emergency rescue flare gun or flare launcher to allow firing of a cartridge or shotgun shell makes the device “any other weapon” under the National Firearms Act, whereas a rifled bore insert of less than ½ inch diameter would be considered an ordinary “pistol” if all the other characteristics of a pistol were retained. Some inserts have caused catastrophic failures. See, ATF 2/25/2010 opinion letter 903050:MCP – 3311/2010-339 at http://www.gaugemate.com/images/stories/gaugemate/batf.pdf.
In Florida Carry, Inc. v. Univ. of North Florida, 38 Fla. L. Weekly D 2592 (Fla. 1DCA 2013), the appellate court held that only a “school district” may prohibit a securely encased firearm in a conveyance, and neither a college or university qualifies as a “school district”. This confirms dicta in an earlier decision out of the Fourth District, and firmly establishes that you may have a securely encased firearm in your vehicle on any college or university campus in Florida despite any conflicting rule. Obviously, this should also apply to any other type “school” not run by and in a “school district”.
Visa Waiver program entrants are not considered “non-immigrant aliens” and therefore can rent or use firearms in the United States, and purchase ammunition anywhere. However, they still cannot purchase a firearm (except for export) unless they qualify as a resident of a state. Same for most citizens of Canada and Bermuda, unless they entered on a visa. Entry into the United States is now online through ESTA, along with a passport.
While a backyard range is subject to any existing noise ordinances, once it goes into operation, any later noise ordinances cannot make it illegal or a nuisance. Moreover, any new neighbors upset by a previously operating home or commercial range may not complain of noise issues. Florida Statute 823.16
State v. Caamano, 105 So. 3d 18 (Fla. 2DCA 2012), held that law enforcement officers are not entitled to claim immunity from criminal prosecution as to the amount of force used in making an arrest as such is totally determined by Florida Statute 776.05.
Brown v. State, 113 So. 3d 103 (Fla. 5DCA 2013), merely reconfirms that a deadly weapon can be used without using deadly force, and the issue is usually a jury question.
It is now established that Florida Statute 776.012 works independent of 776.013. Little v. State, 111 So. 3d 214 (Fla. 2DCA 2013). Unfortunately, legislative changes in 2014 contained in HB 89 have almost totally obliterated the distinctions, and substantially impaired the immunity protections that used to exist in 776.012.
Little v. State, 104 So. 3d 1263 (Fla. 4DCA 2013), held that Florida Statute 790.25(n), allows open or concealed carry of a firearm in any "place of business" which is defined as "simply a location where business is transacted”, thus a union official was at his “place of business” and lawfully carrying concealed without a CWL when he was in the parking lot of the union hall he was visiting for union purposes. Likewise, Santiago v. State, 77 So. 3d 874 (Fla. 4DCA 2012), reaffirmed that a person may conceal carry without a CWL at their own residence premises.
State v. Williams, 127 So. 3d 890 (Fla. 1DCA 2013), citing to prior case law held that a stray shot that caused injury to a bystander is not a criminal violation if done in lawful self defense against another.
CCW Safe, Patriot Legal Protection, LLC, and Armed Citizens Legal Defense Network appear to offer the most protection for self defense situations – at least on paper.
Mobley v. State, 39 Fla. L. Weekly D 64 (Fla 3DCA 2014), is probably one of the most important self defense cases involving the use of deadly force because of the fact pattern. In that case the appellate court held that the defendant was entitled to SYG immunity where he and a friend were violently attacked by two individuals. When the second man reached into his pocket the defendant believed he was reaching for a weapon and shot him dead. The appellate court, in holding that the defendant was entitled to dismissal of the charges under SYG held that: (1) it is not necessary to give a warning before using self defense, and (2) that a citizen using deadly force need not see a weapon on the other individual so long as a reasonably prudent person in those same circumstances and with the same knowledge of the defendant would have been justified in believing that, and therefore use that degree of force.
HB 89 (Florida House Bill 89) passed into law in 2014 appears to have caused the following changes to self defense law: (1) you can only threaten to use “deadly force” if the unlawful conduct you are attempting to prevent would allow you to actually use “deadly force”. Otherwise, the most you can threaten is “non-deadly force”. (2) Before using or threatening to use deadly force – you must retreat (if you can do so in safety) if you are not “in a place where you have a right to be”, or if you were involved in criminal conduct at the time self defense situation arose. F.S. 776.013 & 776.031.
A person convicted of aggravated assault with a firearm may escape the mandatory prison sentence where the trial court finds the defendant mistakenly, and in good faith, believed that his or her actions were legally justified, that he or she was not committing another criminal offense at the time, does not pose a current threat to public safety, and the totality of circumstances involved in the incident do not justify a mandatory sentence. F.S. 775.087(6)
Each county tax collector may now take applications for the CWL. It is a county-by-county option, and your county may, or may not have this.