Need some help from the more learned...

BountyXP · May 4, 2011

Ok, so SB234 has passed and in all likelihood will be signed into law. I won't go into the who's and why's of what happened. That has been rehashed and analyzed to death on numerous posts. What I'm looking for is some interpretation and clarification as is possible at this stage.

The ambiguous wording of the new law contains the words "brief and openly" as transcribed below:

34 It is not a violation of this section for a person licensed to
35 carry a concealed firearm as provided in s. 790.06(1), and who
36 is lawfully carrying a firearm in a concealed manner, to briefly
37 and openly display the firearm to the ordinary sight of another
38 person, unless the firearm is intentionally displayed in an
39 angry or threatening manner, not in necessary self-defense.

I don't see where "accidental" or "inadvertant" are contained simply that it not be "intentionally displayed in an angry or threatening manner." In my eyes that leaves a LOT of dangerous wiggle room. Does that mean it can be intentionally displayed in a non-threatening way? What is non-threatening? Holstered on my hip is non-threatening to me but what about another citizen or LEO? What is "brief"? To me, getting down from my car to pump gas, stop at a 7-Eleven, or into/out of work/home/range/gun store/etc are all "brief" in my definition. Something like 10 or 20 minutes. But what will our fellow citizens...and more importantly LEO's...define as "brief"?

Of course a lot depends on where you live and probably more importantly how far you're willing to challenge the law. Until an AGO is delivered there is no set standard definition of either "brief" or "intentionally displayed in an angry or threatening manner" so am I correct in assuming everything is legal up to the point you are willing to challenge it? I'm not looking to be a test case for the law but should CCW permit holders feel the law has changed nothing and complete 100% coverage of the firearm must be maintained at all times or are there times/instances when a few minutes of display are acceptable?

77zach · May 4, 2011

You know, brief.

As in, "His stay in the country was brief" or "She briefly held that job"

Nothing changes. There will still be rare hassles, few arrests, and 0 prosecutions. This is a non-bill.

brboyer · May 4, 2011

BountyXP said:
Ok, so SB234 has passed and in all likelihood will be signed into law. I won't go into the who's and why's of what happened. That has been rehashed and analyzed to death on numerous posts. What I'm looking for is some interpretation and clarification as is possible at this stage.

The ambiguous wording of the new law contains the words "brief and openly" as transcribed below:

34 It is not a violation of this section for a person licensed to
35 carry a concealed firearm as provided in s. 790.06(1), and who
36 is lawfully carrying a firearm in a concealed manner, to briefly
37 and openly display the firearm to the ordinary sight of another
38 person, unless the firearm is intentionally displayed in an
39 angry or threatening manner, not in necessary self-defense.

I don't see where "accidental" or "inadvertant" are contained simply that it not be "intentionally displayed in an angry or threatening manner." In my eyes that leaves a LOT of dangerous wiggle room. Does that mean it can be intentionally displayed in a non-threatening way? What is non-threatening? Holstered on my hip is non-threatening to me but what about another citizen or LEO? What is "brief"? To me, getting down from my car to pump gas, stop at a 7-Eleven, or into/out of work/home/range/gun store/etc are all "brief" in my definition. Something like 10 or 20 minutes. But what will our fellow citizens...and more importantly LEO's...define as "brief"?

Of course a lot depends on where you live and probably more importantly how far you're willing to challenge the law. Until an AGO is delivered there is no set standard definition of either "brief" or "intentionally displayed in an angry or threatening manner" so am I correct in assuming everything is legal up to the point you are willing to challenge it? I'm not looking to be a test case for the law but should CCW permit holders feel the law has changed nothing and complete 100% coverage of the firearm must be maintained at all times or are there times/instances when a few minutes of display are acceptable?

One may, intentionally or accidentally, openly display a concealed firearm as long as it's 'Brief' - I'm sure the courts will wrestle with this for a while.

It is only illegal to openly display a firearm if done in an intentionally angry or threatening manner. - Which is stupid because we already have a law that covers that.

We are thus saddled, again, with crappy statutory language at the hands of our friends in Tallahassee.

BountyXP · May 4, 2011

I guess the short answer is whatever the courts or AG determines it means. And that's the sad part. Some poor sap is going to be a test case and force their hands into defining the terms. I see a lot of the posters here are from Central or North Florida.

While I cannot speak for those areas, I can tell you in a major metropolis like Miami and the outlying areas of Kendall, Westchester, Doral, Country Walk, etc you see quite a few people openly carrying who are police officers, "G" Licensed security guards, federal law enforcement, plain-clothes/off-duty officers, etc. In point of fact, I'd venture to say most people who see someone openly carrying automatically assume the person is a LEO of some sort.

I drive a decent vehicle (Corvette), dress well, am clean-cut, have no tattoos or piercings, and in general look like everyone else. With my current job, school, and federal agency internship, however, I'm not in a position to be arrested for brandishing or violating this law only to win in court later as a test case. As sad as it looks to actually see me write it out, I guess I'll have to leave this fight to someone else for now. Sucks to be in that position but I guess most of us are all sitting in the same boat...

77zach · May 4, 2011

BountyXP said:
I guess the short answer is whatever the courts or AG determines it means. And that's the sad part. Some poor sap is going to be a test case and force their hands into defining the terms. I see a lot of the posters here are from Central or North Florida.

While I cannot speak for those areas, I can tell you in a major metropolis like Miami and the outlying areas of Kendall, Westchester, Doral, Country Walk, etc you see quite a few people openly carrying who are police officers, "G" Licensed security guards, federal law enforcement, plain-clothes/off-duty officers, etc. In point of fact, I'd venture to say most people who see someone openly carrying automatically assume the person is a LEO of some sort.

I drive a decent vehicle (Corvette), dress well, am clean-cut, have no tattoos or piercings, and in general look like everyone else. With my current job, school, and federal agency internship, however, I'm not in a position to be arrested for brandishing or violating this law only to win in court later as a test case. As sad as it looks to actually see me write it out, I guess I'll have to leave this fight to someone else for now. Sucks to be in that position but I guess most of us are all sitting in the same boat...

Yeah, no one needs to waste time with this terrible bill. Join Fl carry and try to do chip in with the lobbying efforts and whatever else they're thinking up. If enough people are serious in this state of 19 million people, full OC is doable. The seed has been planted; it was hotly debated and almost won in Tally. It's up to us if we wait 1,2, or 25 years.

j4l · May 4, 2011

True enough, but.. these folks made it clear they could give a rat's a s s who or how many ask for the right. They're going to do or not do it, based on whatever agenda they have or whether or not they are comfy with it themselves or whatever.
The voters made it pretty well known what we wanted. The House and the Senate said "the who?? vote what?"
We dont matter squat to them. Be it 5 of us or 50 million of us.
And if you lobby those same folks to death-if they even bother to listen to you again-then what? Will they come up with another vague-worded bill, go through the motions and dog-n-pony show bit yet again, and then also amend it or yank it at the last minute like they just did?

Not much poiint with this current bunch in office.

brboyer · May 4, 2011

BountyXP said:
I guess the short answer is whatever the courts or AG determines it means. And that's the sad part. Some poor sap is going to be a test case and force their hands into defining the terms. I see a lot of the posters here are from Central or North Florida.

While I cannot speak for those areas, I can tell you in a major metropolis like Miami and the outlying areas of Kendall, Westchester, Doral, Country Walk, etc you see quite a few people openly carrying who are police officers, "G" Licensed security guards, federal law enforcement, plain-clothes/off-duty officers, etc. In point of fact, I'd venture to say most people who see someone openly carrying automatically assume the person is a LEO of some sort.

I drive a decent vehicle (Corvette), dress well, am clean-cut, have no tattoos or piercings, and in general look like everyone else. With my current job, school, and federal agency internship, however, I'm not in a position to be arrested for brandishing or violating this law only to win in court later as a test case. As sad as it looks to actually see me write it out, I guess I'll have to leave this fight to someone else for now. Sucks to be in that position but I guess most of us are all sitting in the same boat...

The AG has nothing to say about it...she may offer an opinion, but it's just that, an opinion. It will be up to the courts to decide......

firedog · May 5, 2011

BountyXP said:
I guess the short answer is whatever the courts or AG determines it means. And that's the sad part. Some poor sap is going to be a test case and force their hands into defining the terms. I see a lot of the posters here are from Central or North Florida.

While I cannot speak for those areas, I can tell you in a major metropolis like Miami and the outlying areas of Kendall, Westchester, Doral, Country Walk, etc you see quite a few people openly carrying who are police officers, "G" Licensed security guards, federal law enforcement, plain-clothes/off-duty officers, etc. In point of fact, I'd venture to say most people who see someone openly carrying automatically assume the person is a LEO of some sort.

I drive a decent vehicle (Corvette), dress well, am clean-cut, have no tattoos or piercings, and in general look like everyone else. With my current job, school, and federal agency internship, however, I'm not in a position to be arrested for brandishing or violating this law only to win in court later as a test case. As sad as it looks to actually see me write it out, I guess I'll have to leave this fight to someone else for now. Sucks to be in that position but I guess most of us are all sitting in the same boat...

brboyer said:
The AG has nothing to say about it...she may offer an opinion, but it's just that, an opinion. It will be up to the courts to decide......

Therein lies the problem. Just like before it will never make it into court. The SAO will not pursue the case to court but that will not help the poor individual that was harassed, detained, processed through booking and sat in lockup awaiting bail only to have the case dropped by the SAO. I feel the only way to get this into court will be with civil litigation for unlawful arrest and detainment by LE. Some poor pro gun, pro rights individual will have to spend thousands to push this into a courtroom.

I hold a government security clearance and I cannot be the one that is the test case. My job depends on maintaining that clearance and any arrest less conviction jeopardize that. Without the deep pockets of the NRA willing to finance such a maneuver and a true patriot to the cause willing to be the test case we’re never going to get it defined in the courts.

With this not being an NRA “priority” I don't see it happening. I don’t believe the NRA truly wants open carry in FL regardless of its benefit towards making guns the norm in society. We continue to support the NRA on here and keep saying “take it easy” we need to convince the NRA and not attack them. This is not going to work for us. They have their priorities and OC is not going to be one of them anytime soon. They sabotaged TX's attempt and they will do it again to us.

brboyer · May 5, 2011

firedog said:
Therein lies the problem. Just like before it will never make it into court. The SAO will not pursue the case to court but that will not help the poor individual that was harassed, detained, processed through booking and sat in lockup awaiting bail only to have the case dropped by the SAO. I feel the only way to get this into court will be with civil litigation for unlawful arrest and detainment by LE. Some poor pro gun, pro rights individual will have to spend thousands to push this into a courtroom.

I hold a government security clearance and I cannot be the one that is the test case. My job depends on maintaining that clearance and any arrest less conviction jeopardize that. Without the deep pockets of the NRA willing to finance such a maneuver and a true patriot to the cause willing to be the test case we’re never going to get it defined in the courts.

With this not being an NRA “priority” I don't see it happening. I don’t believe the NRA truly wants open carry in FL regardless of its benefit towards making guns the norm in society. We continue to support the NRA on here and keep saying “take it easy” we need to convince the NRA and not attack them. This is not going to work for us. They have their priorities and OC is not going to be one of them anytime soon. They sabotaged TX's attempt and they will do it again to us.

Which will go nowhere. Any detainment or arrest could be fully justified based on the crappy statute language. One would have to challenge the law, not the enforcers.

~*'Phoenix'*~ · May 5, 2011

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.

Here's what gets me:
"Display" implies intent, not accidental as "Inadventedly expose" does.
How can one be "carrying a firearm in a lawfully concealed manner," which requires one to make a conscious effort to conceal and also "display" it to the ordinary sight of others?
You cannot intend to 'conceal' and intend to 'display.'
But, I guess I should ask the legislators about this; they know all about intending to do two mutually exclusive things as long as it gets them what they want...

firedog · May 5, 2011

firedog said:
Therein lies the problem. Just like before it will never make it into court. The SAO will not pursue the case to court but that will not help the poor individual that was harassed, detained, processed through booking and sat in lockup awaiting bail only to have the case dropped by the SAO. I feel the only way to get this into court will be with civil litigation for unlawful arrest and detainment by LE. Some poor pro gun, pro rights individual will have to spend thousands to push this into a courtroom.

I hold a government security clearance and I cannot be the one that is the test case. My job depends on maintaining that clearance and any arrest less conviction jeopardize that. Without the deep pockets of the NRA willing to finance such a maneuver and a true patriot to the cause willing to be the test case we’re never going to get it defined in the courts.

With this not being an NRA “priority” I don't see it happening. I don’t believe the NRA truly wants open carry in FL regardless of its benefit towards making guns the norm in society. We continue to support the NRA on here and keep saying “take it easy” we need to convince the NRA and not attack them. This is not going to work for us. They have their priorities and OC is not going to be one of them anytime soon. They sabotaged TX's attempt and they will do it again to us.

brboyer said:
Which will go nowhere. Any detainment or arrest could be fully justified based on the crappy statute language. One would have to challenge the law, not the enforcers.

Agreed, but could you not file a motion for interpretation of the statue justifying detainment? Maybe a civil rights violation in civil court. IDK, I’m just throwing it out there. It’s hasn’t transpired yet under old statutes so I doubt it would happen under the new one. It would take a state constitutional challenge because doesn’t FL’s constitution say they can regulate the gun rights?. Even after the Chicago fight and the US supreme courts ruling it would take a challenge at the state's constitution. IDK.... Now we're talking $100,000

I wonder if that wouldn’t get the attention of the law makers, “holy sh!t” now they’er talking about the constitution, I think we may have pissed of the wrong people”.. LOL

rvrctyrngr · May 5, 2011

firedog said:
Agreed, but could you not file a motion for interpretation of the statue justifying detainment? Maybe a civil rights violation in civil court. IDK, I’m just throwing it out there. It’s hasn’t transpired yet under old statutes so I doubt it would happen under the new one. It would take a state constitutional challenge because doesn’t FL’s constitution say they can regulate the gun rights?. Even after the Chicago fight and the US supreme courts ruling it would take a challenge at the state's constitution. IDK.... Now we're talking $100,00

Florida's constitution says the state can regulate the manner in which one bears arms (or arms bears, as the case may be).

SECTION 8. Right to bear arms.—(a) 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.

firedog · May 5, 2011

rvrctyrngr said:
Florida's constitution says the state can regulate the manner in which one bears arms (or arms bears, as the case may be).

SECTION 8. Right to bear arms.—(a) 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.

Exactly, Am I way off base with that argument? Would it be something worth investigating the first time this statue is challenged?..

rvrctyrngr · May 5, 2011

firedog said:
Exactly, Am I way off base with that argument? Would it be something worth investigating the first time this statue is challenged?..

IDK...I imagine if someone is actually arrested or wrongfully detained under the statute, it could very well lead to a Section 1983 Civil Rights Violation suit against the offending party or parties.

I don't really see how challenging the state Constitution would help. Both the Heller and McDonald decisions leave open 'reasonable restrictions'.

nigmalg · May 5, 2011

A 1983 suit would bring the U.S. Constitution into it for which no language about "manner of bearing arms" exists.

In turn that means some level of intermediate scrutiny, per Heller, would apply against the state's interpretation of the law.

Under what level of scrutiny could they ban open carry for permit holders when it's allowed for on and off duty police officers, security agents, and couriers? I could see
an interesting case develop here.

A second claim could be the vagueness of the "brief" language.

rvrctyrngr · May 5, 2011

nigmalg said:
A 1983 suit would bring the U.S. Constitution into it for which no language about "manner of bearing arms" exists.

In turn that means some level of intermediate scrutiny, per Heller, would apply against the state's interpretation of the law.

Under what level of scrutiny could they ban open carry for permit holders when it's allowed for on and off duty police officers, security agents, and couriers? I could see
an interesting case develop here.

A second claim could be the vagueness of the "brief" language.

Dang....and here I was trying to keep things simple! :lol:

I imagine a LOT would depend on what the plaintiff was actually trying to gain from the suit.

77zach · May 5, 2011

For honesty's sake the legislature needs to change the constitution to read "every person has a right to bear arms, except that bearing arms is a privilege granted by the state."

brboyer · May 5, 2011

firedog said:
Agreed, but could you not file a motion for interpretation of the statue justifying detainment? Maybe a civil rights violation in civil court. IDK, I’m just throwing it out there. It’s hasn’t transpired yet under old statutes so I doubt it would happen under the new one. It would take a state constitutional challenge because doesn’t FL’s constitution say they can regulate the gun rights?. Even after the Chicago fight and the US supreme courts ruling it would take a challenge at the state's constitution. IDK.... Now we're talking $100,000

I wonder if that wouldn’t get the attention of the law makers, “holy sh!t” now they’er talking about the constitution, I think we may have pissed of the wrong people”.. LOL

Detainment only requires the LEO have a reasonable suspicion that a crime is being committed. Based in the language of the bill, even I could establish RS if I saw an exposed firearm.

As has been pointed out the Florida Constitution allows the legislature to pass law that control how on possesses/uses a firearm.

Currently the USSC has not ruled on what regulations are permissible, some obviously will be which ones, we have to wait and find out in 5-7 years as cases are heard. Then we may have an opportunity to challenge some of the state law.

brboyer · May 5, 2011

77zach said:
For honesty's sake the legislature needs to change the constitution to read "every person has a right to bear arms, except that bearing arms is a privilege granted by the state."

Um, er....I don't know what to say.

Rick H · May 5, 2011

firedog said:
Therein lies the problem. Just like before it will never make it into court. The SAO will not pursue the case to court but that will not help the poor individual that was harassed, detained, processed through booking and sat in lockup awaiting bail only to have the case dropped by the SAO. I feel the only way to get this into court will be with civil litigation for unlawful arrest and detainment by LE. Some poor pro gun, pro rights individual will have to spend thousands to push this into a courtroom.

I hold a government security clearance and I cannot be the one that is the test case. My job depends on maintaining that clearance and any arrest less conviction jeopardize that. Without the deep pockets of the NRA willing to finance such a maneuver and a true patriot to the cause willing to be the test case we’re never going to get it defined in the courts.

With this not being an NRA “priority” I don't see it happening. I don’t believe the NRA truly wants open carry in FL regardless of its benefit towards making guns the norm in society. We continue to support the NRA on here and keep saying “take it easy” we need to convince the NRA and not attack them. This is not going to work for us. They have their priorities and OC is not going to be one of them anytime soon. They sabotaged TX's attempt and they will do it again to us.

I have a great IDEA let get Ms. Hammer or Senator Evers to be the test dummies, it's their stupid law. or even senator Badlaw to do it!

Need some help from the more learned...

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