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Thread: Florida Carry legal victory makes way for constitutional challenge to Open Carry Ban

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    Campaign Veteran StogieC's Avatar
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    Florida Carry legal victory makes way for constitutional challenge to Open Carry Ban

    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:

    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.

    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:

    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
    Last edited by StogieC; 06-14-2014 at 12:24 AM.

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    Regular Member 77zach's Avatar
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    Question.

    Rick Scott said he supported open carry. Does he know/care that his attorney general is fighting it? Could the state just forfeit and agree it's unconstitutional, which it plainly is?

    If not here is the cliff notes version of the what the government courts will finally decide:

    "Going around openly armed without a government issued costume/uniform is scary and the legislature decided there is a serious government interest in keeping the sheeple calm and orderly. Constantly answering MWAG calls from concerned citizens (they'll ignore that this doesn't happen in 40 other states) is not in the public interest. Besides, the state MUST let you carry concealed if you're not a criminal. You don't have anything to hide, do you?"

    Do we believe that the court that did away with innocent until proven guilty (Fl Vs. Adkins) will recognize our open carry rights? Those are long odds, IMO.

    http://www.republicmagazine.com/news...al-intent.html
    Last edited by 77zach; 04-24-2013 at 11:15 AM.
    “If the natural tendencies of mankind are so bad that it is not safe to permit people to be free, how is it that the tendencies of these organizers are always good? Do not the legislators and their appointed agents also belong to the human race? Or do they believe that they themselves are made of a finer clay than the rest of mankind? ” -Bastiat

    I don't "need" to openly carry a handgun or own an "assault weapon" any more than Rosa Parks needed a seat on the bus.

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    Campaign Veteran StogieC's Avatar
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    Quote Originally Posted by 77zach View Post
    Question.

    Rick Scott said he supported open carry. Does he know/care that his attorney general is fighting it? Could the state just forfeit and agree it's unconstitutional, which it plainly is?

    If not here is the cliff notes version of the what the government courts will finally decide:

    "Going around openly armed without a government issued costume/uniform is scary and the legislature decided there is a serious government interest in keeping the sheeple calm and orderly. Constantly answering MWAG calls from concerned citizens (they'll ignore that this doesn't happen in 40 other states) is not in the public interest. Besides, the state MUST let you carry concealed if you're not a criminal. You don't have anything to hide, do you?"

    Do we believe that the court that did away with innocent until proven guilty (Fl Vs. Adkins) will recognize our open carry rights? Those are long odds, IMO.

    http://www.republicmagazine.com/news...al-intent.html

    State v. Adkins 96 So.3d 412 (Fla. 2012) actually makes our case easier.

    The Florida Supreme Court generally held in Adkins that strict liability can not be demanded when there is a property right or a fundamental right involved. There is no general right to possess illicit drugs. There is a right to bear arms.

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    Accomplished Advocate BB62's Avatar
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    Quote Originally Posted by StogieC View Post
    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...

    ...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...
    Correct me if I'm wrong, but Florida effectively did away with the RIGHT to keep and bear arms years ago with a change in the state constitution, and the subsection of the law quoted above.

    From the FL constitution, Article I, Sec 8: "The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law."

    Okay, so how does one simultaneously have a RIGHT, yet the MANNER of bearing arms can be regulated such that your right becomes a privilege?? Bottom line, you have no RKBA under the FL constitution and related laws, which I assume is the basis for State v Norman?

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    Regular Member 77zach's Avatar
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    Quote Originally Posted by BB62 View Post
    Correct me if I'm wrong, but Florida effectively did away with the RIGHT to keep and bear arms years ago with a change in the state constitution, and the subsection of the law quoted above.

    From the FL constitution, Article I, Sec 8: "The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law."

    Okay, so how does one simultaneously have a RIGHT, yet the MANNER of bearing arms can be regulated such that your right becomes a privilege?? Bottom line, you have no RKBA under the FL constitution and related laws, which I assume is the basis for State v Norman?
    You can't have a right and not have a right at the same time and in the same relationship, or else the court would have to hold the legislature wanted a contradiction in the constitution.

    A constitutional regulation of the manner of bearing arms is this:

    "790.10 Improper exhibition of dangerous weapons or firearms.—If any person having or carrying any dirk, sword, sword cane, firearm, electric weapon or device, or other weapon shall, in the presence of one or more 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...."

    To me it would be a stretch to make carrying concealed illegal while allowing unlicensed OC. It's obvious the constitution means nothing while carrying concealed is licensed and OC illegal. That won't stop the court from ruling in the state's favor; truth is no defense in the empire of lies. At least it will be entertaining to read the court's tortuous logic, assuming it has to give it.

    I can imagine all kinds of creative, dishonest ways to get out of all the challenges. They're going to have to be very dishonest in slapping down the void for vagueness one though, since the subjective word "briefly" is not defined in the law. I'm guessing that they might strike that down and give the legislature the time needed to write different language that still screws us over. I don't really know how the process works.
    Last edited by 77zach; 04-25-2013 at 10:22 AM.
    “If the natural tendencies of mankind are so bad that it is not safe to permit people to be free, how is it that the tendencies of these organizers are always good? Do not the legislators and their appointed agents also belong to the human race? Or do they believe that they themselves are made of a finer clay than the rest of mankind? ” -Bastiat

    I don't "need" to openly carry a handgun or own an "assault weapon" any more than Rosa Parks needed a seat on the bus.

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    Regular Member carolina guy's Avatar
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    Not being from Florida, I have to ask a quick couple questions:
    Does FL only outlaw the OC and non-permitted CC of a FIREARM?
    Do they allow the un-permitted carry of other forms of Arms? (bow, sword, club, etc)

    To me, it seems like the 2A argument has been singularly focused on firearms, whereas the 2A does not specifically mention firearms.
    If something is wrong for ONE person to do to another, it is still wrong if a BILLION people do it.

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    Campaign Veteran StogieC's Avatar
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    Quote Originally Posted by carolina guy View Post
    Not being from Florida, I have to ask a quick couple questions:
    Does FL only outlaw the OC and non-permitted CC of a FIREARM?
    Do they allow the un-permitted carry of other forms of Arms? (bow, sword, club, etc)

    To me, it seems like the 2A argument has been singularly focused on firearms, whereas the 2A does not specifically mention firearms.
    Remember this is a criminal case where the appellant was convicted of openly carrying a handgun; hence the additional focus on firearms.

    Under FL law, Firearms and Weapons are defined separately. The State issued license to carry is literally titled a "Concealed Weapon or Firearms License" (CWFL).
    The law creating the license is http://flsenate.gov/Laws/Statutes/2012/790.06 "License to carry concealed weapon or firearm."


    1. You can OC most classes of arms, but not a "firearm or electric weapon or device". See: http://flsenate.gov/Laws/Statutes/2012/790.053
    2. It is illegal to Conceal any class of arms. (excluding the common pocketknife) See: http://flsenate.gov/Laws/Statutes/2012/790.01
    3. The CWFL licenses you to conceal any "handgun, electronic weapon or device, tear gas gun, knife, or billie".


    The appellate brief, Click Here, goes to great length to explain that the bearing of any class of arms, that is in common use for lawful purposes, is protected by both 2A US Const and Art. I Sec. 8 FL Const.


    • “Firearm” means any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun. The term “firearm” does not include an antique firearm unless the antique firearm is used in the commission of a crime.
    • “Weapon” means any dirk, knife, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife, plastic knife, or blunt-bladed table knife.
    • “Electric weapon or device” means any device which, through the application or use of electrical current, is designed, redesigned, used, or intended to be used for offensive or defensive purposes, the destruction of life, or the infliction of injury.
    • “Concealed firearm” means any firearm, as defined ... [see above], which is carried on or about a person in such a manner as to conceal the firearm from the ordinary sight of another person.


      “Concealed weapon” means any dirk, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon carried on or about a person in such a manner as to conceal the weapon from the ordinary sight of another person.

      See: http://flsenate.gov/Laws/Statutes/2012/790.001

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    Regular Member 77zach's Avatar
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    Quote Originally Posted by StogieC View Post
    Remember this is a criminal case where the appellant was convicted of openly carrying a handgun; hence the additional focus on firearms.
    As negative as I am I still am grateful for this case. How do you personally feel about it's chances? I'm hopeful for at least getting "briefly" struck down for CWF licensees. The desire for the courts to protect the state is sometimes balanced by the need to maintain credibility. What happens when the next 20 days is up?
    “If the natural tendencies of mankind are so bad that it is not safe to permit people to be free, how is it that the tendencies of these organizers are always good? Do not the legislators and their appointed agents also belong to the human race? Or do they believe that they themselves are made of a finer clay than the rest of mankind? ” -Bastiat

    I don't "need" to openly carry a handgun or own an "assault weapon" any more than Rosa Parks needed a seat on the bus.

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    Campaign Veteran StogieC's Avatar
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    Quote Originally Posted by 77zach View Post
    As negative as I am I still am grateful for this case. How do you personally feel about it's chances? I'm hopeful for at least getting "briefly" struck down for CWF licensees. The desire for the courts to protect the state is sometimes balanced by the need to maintain credibility. What happens when the next 20 days is up?
    I'm cautiously optimistic about the case. There are more possible outcomes than imaginable at this point.

    Here is what I am sure of; If the State looses in this appeal, after their win at trial, it will automatically go the the Florida Supreme Court. If Dale Norman looses he will appeal to the FL Supreme Court but they will not be required to take the case, their jurisdiction would be discretionary after losses in both trial and appellate courts.

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    Regular Member ADulay's Avatar
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    What a great discussion.

    Thanks for the flow of information for those of us "out in the trenches" trying to help.

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    Article I, Sec 8: The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law.

    This amendment is repugnant to its very intent. In one instance it says the right of the people to bear arms shall not be infringed, but then it immediately states the bearing of arms may be regulated by law. If a right is NOT to be infringed, then it is NOT to be regulated. Apparently someone didn't understand the meaning of "shall" and "infringed."

    I had honestly never spent the time to study Florida's constitutional provision, but now that I have read it I find it rather appalling.

    Who would've thought a state that strongly supports the right to keep and BEAR arms would have such a useless constitutional provision that "protects" the same?
    "I never in my life seen a Kentuckian without a gun..."-Andrew Jackson

    "Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined."-Patrick Henry; speaking of protecting the rights of an armed citizenry.

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    Florida Carry legal victory makes way for constitutional challenge to Open Carr

    Stogie,

    So if it goes to the supreme court and they find it against the state, what then? Are we immediately allowed to open carry? Do we have to wait for the legislature to act again?

    Thanks

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    Regular Member rvrctyrngr's Avatar
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    Quote Originally Posted by carolina guy View Post
    Not being from Florida, I have to ask a quick couple questions:
    Does FL only outlaw the OC and non-permitted CC of a FIREARM?
    Do they allow the un-permitted carry of other forms of Arms? (bow, sword, club, etc)

    To me, it seems like the 2A argument has been singularly focused on firearms, whereas the 2A does not specifically mention firearms.
    Simple answer to your question:

    Yes, it is perfectly legal to OC any legal weapon, other than a firearm in FL without a license. Must have a license to CC a handgun or other weapon (cannot CC a long gun).
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    Campaign Veteran StogieC's Avatar
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    Quote Originally Posted by sniper1 View Post
    Stogie,

    So if it goes to the supreme court and they find it against the state, what then? Are we immediately allowed to open carry? Do we have to wait for the legislature to act again?

    Thanks
    Depends on what the court does. A decision may take effect immediately or be staid, as happened in Illinois for 180 days.

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    Regular Member carolina guy's Avatar
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    Quote Originally Posted by StogieC View Post
    Depends on what the court does. A decision may take effect immediately or be staid, as happened in Illinois for 180 days.
    Anyone know what has happened in IL since the decision? Don't they have about a month or two left?
    If something is wrong for ONE person to do to another, it is still wrong if a BILLION people do it.

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    Campaign Veteran StogieC's Avatar
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    Quote Originally Posted by carolina guy View Post
    Anyone know what has happened in IL since the decision? Don't they have about a month or two left?
    Best source for info about that is http://www.isra.org/

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    Regular Member 77zach's Avatar
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    Quote Originally Posted by StogieC View Post
    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.
    I wonder if this will help the cause. I mean, if the state were in the right, what do they have to hide? The dishonest attorneys tasked with defending the state are going to have to make stuff up.
    Last edited by 77zach; 04-26-2013 at 10:19 AM.
    “If the natural tendencies of mankind are so bad that it is not safe to permit people to be free, how is it that the tendencies of these organizers are always good? Do not the legislators and their appointed agents also belong to the human race? Or do they believe that they themselves are made of a finer clay than the rest of mankind? ” -Bastiat

    I don't "need" to openly carry a handgun or own an "assault weapon" any more than Rosa Parks needed a seat on the bus.

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    Founder's Club Member protias's Avatar
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    Regalado v. State, 25 So. 3d 600 - Fla: Dist. Court of Appeals, 4th Dist. 2009
    "Despite the obvious potential danger to officers and the public by a person in possession of a concealed gun in a crowd, this is not illegal in Florida unless the person does not have a concealed weapons permit, a fact that an officer cannot glean by mere observation. Based upon our understanding of both Florida and United States Supreme Court precedent, stopping a person solely on the ground that the individual possesses a gun violates the Fourth Amendment."
    No free man shall ever be debarred the use of arms. Thomas Jefferson (1776)

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    Campaign Veteran StogieC's Avatar
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    Quote Originally Posted by protias View Post
    Regalado v. State, 25 So. 3d 600 - Fla: Dist. Court of Appeals, 4th Dist. 2009
    "Despite the obvious potential danger to officers and the public by a person in possession of a concealed gun in a crowd, this is not illegal in Florida unless the person does not have a concealed weapons permit, a fact that an officer cannot glean by mere observation. Based upon our understanding of both Florida and United States Supreme Court precedent, stopping a person solely on the ground that the individual possesses a gun violates the Fourth Amendment."
    There is a DCA split in Florida over Regalado. See Mackey v. State, currently in the FL Supreme Court. We filed Amicus in the case.

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    rvrctyrngr writes:

    Must have a license to CC a handgun or other weapon (cannot CC a long gun).
    There is nothing in the statute that states a lawfully-concealed firearm be a handgun. If you can conceal it, you can carry it.

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    Quote Originally Posted by MedWheeler View Post
    rvrctyrngr writes:



    There is nothing in the statute that states a lawfully-concealed firearm be a handgun. If you can conceal it, you can carry it.
    I refer you to 790.06(1) Florida Statutes, which reads in pertinent part:
    . . .
    For the purposes of this section, concealed weapons or concealed firearms are defined as a handgun, electronic weapon or device, tear gas gun, knife, or billie
    . . .






    However, there is an argument that one may carry any firearm that is concealed, due to the wording contained in 790.01:
    3) This section does not apply to a person licensed to carry a concealed weapon or a concealed firearm pursuant to the provisions of s. 790.06.
    Note it does not say carrying a firearm or weapon as authorized in that section, it simply says that if one is licensed 790.01 does not apply.
    Interesting legal argument. I'd like to see it played out in court.
    Last edited by notalawyer; 04-29-2013 at 10:16 AM.

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    Regular Member h20squirter's Avatar
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    I know that a lot of folks are against Open Carry, but I really hope that this passes, mostly from a Constitutional standpoint, because, "Shall not be infringed" is pretty plain even for me to understand, but also being a big guy in FL Open carry would be much more comfortable. I'm don't want to get into a debate in the merit between OC and CC. just my $.02.

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    Notalawyer, regarding post 21, I, too, would like to see this one played out. There was a case in Florida in which an unlicensed person was charged specifically with carrying a concealed firearm which involved a long gun. I cannot remember if it was a rifle or a shotgun. The defendant had been stopped while driving a compact pickup truck equipped with a bench seat, and a long gun was stored behind that seat. There, it was within the limits of the law. The defendant exited his vehicle and reached behind that seat to retrieve his documents (DL, registration, etc.) and was then arrested for the CCF charge because the gun was then not only considered as having been stored in a concealed manner, but also "readily accessible." I don't remember the outcome, but I'm pretty sure it involved neither a dismissal nor an acquittal. It would be interesting to know if any part of the argument in his defense (if one was even presented) involved the quote from 790.01(1) in which you note includes the word "handgun", but does not even address any other type of firearm.

    Edit: In re-reading the entire section, I agree that the legislative intent is that, while the carrying of any type of firearm in a concealed manner without a license is unlawful, only the carrying of a handgun (and the other "non-firearm" weapons mentioned within the statute) becomes excluded from that prohibition when a person is licensed to carry. From 790.01(3), which addresses the ban on carrying of concealed firearms:

    This section does not apply to a person licensed to carry a concealed weapon or a concealed firearm pursuant to the provisions of s. 790.06
    .

    "Pursuant to the provisions of s. 790.06" would include, I assume, the definition that section offers of a permitted firearm as being a handgun.

    So, I consider myself corrected. The more I review it, the clearer it seems.
    Last edited by MedWheeler; 04-30-2013 at 06:32 AM.

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    Quote Originally Posted by MedWheeler View Post
    Notalawyer, regarding post 21, I, too, would like to see this one played out. There was a case in Florida in which an unlicensed person was charged specifically with carrying a concealed firearm which involved a long gun. I cannot remember if it was a rifle or a shotgun. The defendant had been stopped while driving a compact pickup truck equipped with a bench seat, and a long gun was stored behind that seat. There, it was within the limits of the law. The defendant exited his vehicle and reached behind that seat to retrieve his documents (DL, registration, etc.) and was then arrested for the CCF charge because the gun was then not only considered as having been stored in a concealed manner, but also "readily accessible." I don't remember the outcome, but I'm pretty sure it involved neither a dismissal nor an acquittal. It would be interesting to know if any part of the argument in his defense (if one was even presented) involved the quote from 790.01(1) in which you note includes the word "handgun", but does not even address any other type of firearm.

    Edit: In re-reading the entire section, I agree that the legislative intent is that, while the carrying of any type of firearm in a concealed manner without a license is unlawful, only the carrying of a handgun (and the other "non-firearm" weapons mentioned within the statute) becomes excluded from that prohibition when a person is licensed to carry. From 790.01(3), which addresses the ban on carrying of concealed firearms:

    .

    "Pursuant to the provisions of s. 790.06" would include, I assume, the definition that section offers of a permitted firearm as being a handgun.

    So, I consider myself corrected. The more I review it, the clearer it seems.


    Perhaps it's this case you are referring to?
    Boswink v. State, 636 So. 2d 584 - Fla: Dist. Court of Appeals, 2nd Dist. 1994

    Because of the length of the weapons and their position behind the driver's seat, Boswink could only retrieve the guns by opening the door and awkwardly reaching behind the seat. In all probability, he could not accomplish the feat without actually exiting the truck. As a matter of law, the guns could not have been retrieved "as easily and quickly as if carried on the person," and Boswink's possession of them in his truck was not illegal. Accordingly, we reverse the trial court's order and remand for the entry of an order dismissing the firearms charges.

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    ^^ I believe that is indeed the one, though I had not heard the disposition when I first read of it. That name does sound familiar, though.

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