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Concealed carry, arrest, and affirmative defense.

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seminole425

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Nov 6, 2012
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Forgive me if this is posted elsewhere.

I remember hearing that the law had changed and a licensed concealed carrier can no longer be arrested for legally carrying a concealed firearm. Is this true, or are we still arrested and required to go to court and present an affirmative defense for lawful activity?
 
Fallschirjmäger

Fallschirjmäger

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Cumming, Georgia, USA
What if the person who carries a concealed weapon, is not in the act of evacuating during a mandatory evacuation order issued during a state of emergency declared by the Governor declared by a local authority?


Be It Enacted by the Legislature of the State of Florida:
Section 1. Section 790.01, Florida Statutes, is amended to read:

790.01 Unlicensed carrying of concealed weapons or concealed firearms.

(1) Except as provided in subsection (3), a person who is not licensed under s. 790.06 and who carries a concealed weapon or electric weapon or device on or about his or her person commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(2) Except as provided in subsection (3), a person who is not licensed under s. 790.06 and who carries a concealed firearm on or about his or her person commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(3) This section does not apply to:
(a) A person who carries a concealed weapon, or a person who may lawfully possess a firearm and who carries a concealed firearm, on or about his or her person while in the act of evacuating during a mandatory evacuation order issued during a state of emergency declared by the Governor pursuant to chapter 252 or declared by a local authority pursuant to chapter 870. As used in this subsection, the term “in the act of evacuating” means the immediate and urgent movement of a person away from the evacuation zone within 48 hours after a mandatory evacuation is ordered. The 48 hours may be extended by an order issued by the Governor.

(b) A person who carries for purposes of lawful self-defense, in a concealed manner:
1. A self-defense chemical spray.
2. A nonlethal stun gun or dart-firing stun gun or other nonlethal electric weapon or device that is designed solely for defensive purposes.
​

(4)This section does not preclude any prosecution for the use of an electric weapon or device, a dart-firing stun gun, or a self-defense chemical spray during the commission of any criminal offense under s. 790.07, s. 790.10, s. 790.23, or s.790.235, or for any other criminal offense. Section 2.This act shall take effect upon becoming a law
Click to expand...
 
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2 Samuel 22

2 Samuel 22

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Jul 4, 2010
Messages
11
StogieC said:
We changed the law to fix this problem about a month ago.
Click to expand...

The language in 790.02 declaring the carrying of a concealed weapon a "breach of peace" seems to conflict with this and adds to the convolution. What are your thoughts on getting 790.02 amended?



790.02 Officer to arrest without warrant and upon probable cause.—The carrying of a concealed weapon is declared a breach of peace, and any officer authorized to make arrests under the laws of this state may make arrests without warrant of persons violating the provisions of s. 790.01 when said officer has reasonable grounds or probable cause to believe that the offense of carrying a concealed weapon is being committed.
 
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notalawyer

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Jun 19, 2012
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Florida
Fallschirmjäger said:
What if the person who carries a concealed weapon, is not in the act of evacuating during a mandatory evacuation order issued during a state of emergency declared by the Governor declared by a local authority?
Click to expand...

Nothing.
790.01(2) has two separate clauses:
1) The provision (an affirmative defense) for folks evacuating - "Except as provided in subsection (3)"
2) Establishing the lack of a CWFL as an element of the crime - "a person who is not licensed"

Unless the LEO knows (or has facts that support a probable cause finding) that the individual does not have a CWFL, he may not perform a 'terry' stop. Of course, if the individual is otherwise engaged in criminal activity (or the LEO has facts that support a reasonable suspicion) a 'terry' stop is always authorized.

Once an individual is lawfully 'terry' stopped and a firearm is discovered, we revert to the affirmative defense situation, where the individual would need to offer some facts to the LEO (or court later on) that provides by a preponderance of the evidence, that the individual was indeed evacuating the area under a mandatory order within 48 hours; or present a CWFL.
 
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notalawyer

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Joined
Jun 19, 2012
Messages
1,061
Location
Florida
2 Samuel 22 said:
The language in 790.02 declaring the carrying of a concealed weapon a "breach of peace" seems to conflict with this and adds to the convolution. What are your thoughts on getting 790.02 amended?



790.02 Officer to arrest without warrant and upon probable cause.—The carrying of a concealed weapon is declared a breach of peace, and any officer authorized to make arrests under the laws of this state may make arrests without warrant of persons violating the provisions of s. 790.01 when said officer has reasonable grounds or probable cause to believe that the offense of carrying a concealed weapon is being committed.
Click to expand...

Not needed. 790.02 only comes into play if the LEO has PC to believe that a violation of 790.01 has occurred. Which will require that he knows the individual does not have a CWFL. i.e. a LEO cannot know (or have RS/PC) one is violating 790.01 unless he knows the individual is not licensed.
 
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