FL SUPREME COURT DENIES STATE ATTEMPT TO KILL RIGHT TO BEAR ARMS QUESTION
On Friday, April 19, 2013, Florida’s Supreme Court denied a motion by the Attorney General to prohibit the Fourth District Court of Appeals from considering the appeal of a Concealed Carry Licensee who was convicted of violating Florida's Open Carry Ban and answering three questions which the county court considered to be of great public importance.
The case at hand is State v. Norman. On February 19, 2012, Dale Norman, whose concealed carry license had been issued only days earlier, walked down the street in Fort Pierce, Florida with his pistol holstered on his hip. Unbeknownst to Mr. Norman, the weight of his pistol caused his shorts to sag, making part of his holster visible to the public. A concerned citizen called police, who arrested Mr. Norman for violation of §790.053 Florida Statutes, which states in part:
Although the court found Mr. Norman guilty as there was no evidence that the firearm had been concealed before he was arrested or that it could have been due to his manner of dress, Judge Cliff Barnes of the St. Lucie County Court found three questions to be of great public importance to law enforcement and the millions of Florida gun owners, and certified them to be addressed by the appellate court:
Except as otherwise provided by law and in subsection (2), it is unlawful for any person to openly carry on or about his or her person any firearm or electric weapon or device. It is not a violation of this section for a person licensed to carry a concealed firearm as provided in s. 790.06(1), and who is lawfully carrying a firearm in a concealed manner, to briefly and openly display the firearm to the ordinary sight of another person, unless the firearm is intentionally displayed in an angry or threatening manner, not in necessary self-defense.
1. Is Florida’s statutory scheme related to the open carry of firearms constitutional?
2. Do the exceptions to the prohibition against open carry constitute affirmative defenses to a prosecution for a charge of open carry or does the State need to prove beyond a reasonable doubt that a particular defendant is not conducting him/herself in the manner allowed?
3. Does the recent “brief and open” display exception unconstitutionally infect the Open Carry Law by its vagueness?
These are questions Florida Carry has asked since a floor amendment gutted SB 234, a repeal of Florida’s open carry ban during the 2011 legislative session, resulting in the ambiguous “brief” language being inserted in statute.
It is Florida Carry’s position that since the Third District Court of Appeals found a concealed carry license for handguns to be a privilege and not a right in Crane v. Department of State, 547 So. 2d 266 (Fla. 3DCA 1989), and it is wholly unlawful to carry any firearm without a concealed carry license (except for the limited situations in §790.25(3) Florida Statutes), then it must follow that unlicensed open carry must be the right protected under the Constitution of Florida and the United States.
The Fourth District Court of Appeals agreed to consider the questions on January 29, 2013. The very next day in a virtually unprecedented move, the State filed a Writ of Prohibition with the Florida Supreme Court, contending that the appellate court was exceeding its authority by agreeing to hear the questions certified by the county court.
Florida Carry is pleased to announce that the Florida Supreme Court has denied the State’s Writ of Prohibition, and the Fourth District Court of Appeals will consider these constitutional issues of vital importance to the firearms carrying population of Florida. Our lead attorney, Eric J. Friday, looks forward to arguing the case before the court, and we are confident that the court will see the contradiction in how a “right” is implemented in Florida Statute.
The Initial Brief on the Merits of the case was filed on Monday, April 22nd, 2013. The State will have 20 days to file an Answer Brief.
Case updates and relevant filings can be found on the Florida Carry Webpage's Litigation Section.
The Appellate Brief is HERE