Florida Gun Laws

 

NOTICE: Any of the following information is solely a general legal discussion of the law in Florida and should not be considered as giving legal advice.

Open Carry?

In Florida, it is generally illegal to openly carry a weapon. One may openly carry a handgun in plain sight with no license or permit while at his home, place of business, or while lawfully engaged in or going directly to and from target shooting, fishing, camping, or hunting expeditions (see below). A person may openly carry, for legal self-defense purposes, a self-defense chemical spray, non-lethal stun gun, dart-firing stun gun or other non-lethal electric weapon designed for defensive purposes only.

So Where Can I Have A Gun?

790.25 Lawful ownership, possession, and use of firearms and other weapons – Section 3

Even if a person does not possess a CWFL, there are some places a person may possess a firearm. These places include:

• A private motor vehicle if the firearm is securely encased. “Securely encased” means in a glove compartment, whether or not locked; snapped in a holster; in a gun case, whether or not locked; in a zippered gun case; or in a closed box or container which requires a lid or cover to be opened for access. While there is no restriction noted here on open carry in your own vehicle, there is also no case law directly on point, but most legal interpretations are that a firearm cannot be visible to the ordinary sight of another outside the vehicle. As far as securely encased is concerned, the firearm must be snapped in a holster, not simply in a holster. This provision originated when many holsters had thumb breaks. It is arguable today that modern level 1, 2 or 3 retention holsters meet this definition, but it has not been court tested. (There is no such thing as a “three step rule”)
• A public mode of travel if the firearm is securely encased and not in an individual’s manual possession. “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.
• A person’s residence or place of business. “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night. “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.
• A person engaged in fishing, camping, or hunting, including going to or returning from fishing, camping, or hunting.
• A person engaged in firing weapons for testing or target practice under safe conditions and in a safe place not prohibited by law or going to or from such place; or A person firing weapons in a safe and secure indoor range for testing and target practice;
• A person while carrying a pistol unloaded and in a secure wrapper, concealed or otherwise, from the place of purchase to his or her home or place of business or to a place of repair or back to his or her home or place of business;

Children In The Home:

If storing a loaded weapon in the home, it must be in a locked container or secured with a trigger lock if there is reason to know that a child under 16 may gain access to the firearm.

 

The Concealed Weapons Laws of The State of Florida:

Florida is unusual in that it allows many concealed weapons, not just handguns, to be legally carried with a license. Florida defines “concealed weapons” as handguns, electronic weapons or devices, tear gas guns, knives, and billie clubs. If a person is in possession of a concealed weapon, they must produce their concealed weapons license along with another valid identification upon the demand of a police officer.

 

Further, even with a CWFL these weapons may not be carried concealed in the following places, pursuant to Section 790.09(12)(a), Florida Statutes:

• A place of nuisance. Florida defines “a place of nuisance” as any place that annoys the community, injures the health of the community, or is injurious to the manners or morals of the people. These types of locations include, but are not limited to, places of prostitution, assignation (an outdated term for a place used for secret meetings), a place of lewdness, places used for illegal gambling purposes, or places deemed to have criminal gangs and activity.
• Any police, sheriff, or highway patrol station, detention facility, jail, or prison.
• Any courthouse or courtroom except that a judge may carry and determine who may carry within his or her courtroom.
• Any polling place.
• Any meeting of the governing body of a county, public school district, municipality, special district or meeting of the Legislature or a Legislative Committee.
• Any public or private school, college, or professional athletic event not relating to firearms. This includes a school sponsored event, the property of any school, school bus, or school bus stop. However, a person may carry a firearm on school property if: it is carried in a case for the purposes of attending a firearms program or class that has been approved in advanced by the principle or chief administrative officer of the school, or in a vehicle if it is securely encased and not readily accessible for immediate use. School districts may waive this exception for purposes of student and campus parking.
• Any public or private preschool, elementary, or secondary school and their administrative buildings.
• Any career center. However, a person may carry inside a career center if attending a firearms training program.
• Any college or university facility unless the CWFL holder is a registered student, employee, or faculty member of the college or university and the weapon is a stun gun, nonlethal electric weapon, or device designed solely for defensive purpose and the weapon does not fire a dart or projectile.
• Any portion of an establishment licensed to dispense alcoholic beverages for consumption on the premises, which portion of the establishment is primarily devoted to such purpose. (Unfortunately, this law is ambiguous and appears to be subject to interpretation with regard to restaurants with bars or other places licensed to serve alcohol which serve other purposes such as casinos and other places of entertainment. U.S. Law Shield has researched this issue including contacting the concealed weapons division of the Florida Department of Agriculture and have received this response. While this letter and its opinion are not authoritative, the general sense is that concealed weapons may be legally carried by a CWFL holder into a business that serves alcohol but not as a primary business, however a concealed weapons carrier should stay out of portions of that business where the service of alcohol is the primary function, i.e., the bar area of a restaurant.)
• The inside of a passenger terminal both outside and inside the secured areas of any airport, provided that no person shall be prohibited from carrying any legal firearm into the terminal that is encased for shipment purposes and checked as baggage to be lawfully transported on an aircraft.
• It is unlawful for any person, except a law enforcement or conservation officer, to have in his or her possession any firearm while within the Savannas except when in compliance with regulations established by the Fish and Wildlife Conservation Commission. FSA §258.157(2)(A savanna, or savannah, is a grassland ecosystem characterized by the trees being sufficiently widely spaced so that the canopy does not close.)

 

Prohibited Areas according to Federal Law

• Airport secure areas  (49 CFR § 1540.111(a))
• Post Offices  (18 USC § 930, 39 CFR § 232.1)
• Federal buildings (including prisons, courthouses, and Army Corps of Engineers) (18 USC § 930, 36 CFR § 327.13)
• A private residence if notice is given (verbal/posted sign)
• Military bases  (18 USC § 930)
• National cemeteries (38 C.F.R. § 1.218(a)(13))
• Any area designated secure or otherwise prohibited by State or Federal Law

 

 

The State of Florida Justification For the Use of Force & Deadly Force:

In Florida, there are several situations where a person is justified in using deadly or non-deadly force. Deadly force is defined as force likely to cause death or great bodily harm, which includes the actual firing of a gun. A person may use deadly force against another if it is reasonable to believe the deadly force will prevent death or serious bodily harm to themselves or another person.

In Florida, deadly force may be used to prevent the commission of a “forcible felony” which includes: treason, murder, manslaughter, sexual battery, carjacking, home invasion, robbery, burglary, arson, kidnapping, aggravated assault, aggravated battery, aggravated stalking, aircraft piracy, unlawful throwing, placing or discharging a destructive devise or bomb; and any other felony which involves the use or threat of physical force or violence against an individual.

In Florida a legal presumption arises that a person acted reasonably in using deadly force in two situations. First, it is presumed that deadly force was reasonable if an individual was unlawfully or forcibly entering or entered into a home, business or occupied vehicle. Second, if an individual attempts or attempted to forcibly remove another against his or her will from a home, business or occupied vehicle, it is presumed to be reasonable to use deadly force. During these two situations, it must be reasonable to believe that a forcible and unlawful act was occurring or occurred.

 

This Florida legal presumption does not arise if:

• A person had a legal right to be in the home, business or vehicle and there is no injunction for protection due to domestic violence and no court order for no contact;
• The person sought to be removed is a child or grandchild and in the lawful custody of a guardian and the guardian is the person defensive force was used against;
• The person who uses defensive force is engaged in unlawful activity and the unlawful activity is occurring in the home, business or vehicle; and
• A law enforcement officer who has lawfully identified himself or is acting in accordance with the law.

In Florida if a person is attacked in any place where they had a right to be, they have no duty to retreat and have the right to stand their ground and meet force with force, including deadly force, if they reasonably believe that it is necessary to do so to prevent death or great bodily harm to themselves or to prevent the commission of a forcible felony. Next, there are several situations where a person is justified in using non-deadly force. First, a person may use non-deadly force if they reasonably believe that unlawful harm against themselves or another is imminent. Second, a person may use non-deadly force in the protection of property, to prevent or terminate another’s trespass or other unlawful interference with real property (other than the home) or personal property. However, deadly force could be used when the crime against property is also classified as a “forcible felony,” such as arson, burglary or robbery.

Unique Weapons Laws of Florida:

Florida has taken a very strong stance on the right of people to keep and bear arms. Not only is there no requirement to register a firearm, but all government agencies and private persons are prohibited by law from compiling any list, record or registry of legal firearms owned by law-abiding citizens.

Florida law prohibits taking firearms into, and sending firearms there from, any hospital providing mental health services. The law also prohibits transmitting firearms to any patient of such a hospital outside the grounds of the hospital. The statute, Section 394.458 Florida Statutes, includes the phrase “except as otherwise authorized by law,” but does not explicitly specify whether concealed firearms licensees are included.

Discharging a firearm or possessing it loaded in hand, while under the influence of alcohol, any prohibited substance, or prescribed medication is a violation of the law. Further, if the police suspect that a person has discharged a firearm or held a loaded firearm while under the influence, they can ask that person to submit to a chemical test to determine the presence of alcohol or a controlled substance in their body. If the use of the firearm has resulted in someone’s death or serious injury the police can mandatorily take blood for testing. If the chemical test shows a blood alcohol content of less than .05 percent, then the person is presumed to not be under the influence. If the blood alcohol is between .05 percent and .10 percent this evidence can be used with other evidence to prove that the alcohol caused that person’s mental or physical impairment. If the blood alcohol is over .10 percent then that person is presumed to be impaired by alcohol. However, this provision does not apply to those using lawful self-defense or defense of one’s property.

Florida also has a very strong statement in the law which states that people have a right to keep and bear arms for self-defense in their motor vehicle. Section 790.251 Florida Statutes states that individual citizens have a constitutional right to keep and bear arms, that they have a constitutional right to possess and keep legally owned firearms within their motor vehicles for self-defense and other lawful purposes, and that these rights are not abrogated by virtue of a citizen becoming a customer, employee, or invitee of a business entity. It is the finding of the Legislature that a citizen’s lawful possession, transportation, and secure keeping of firearms and ammunition within his or her motor vehicle is essential to the exercise of the fundamental constitutional right to keep and bear arms and the constitutional right of self-defense. The Legislature finds that protecting and preserving these rights is essential to the exercise of freedom and individual responsibility. The Legislature further finds that no citizen can or should be required to waive or abrogate his or her right to possess and securely keep firearms and ammunition locked within his or her motor vehicle by virtue of becoming a customer, employee, or invitee of any employer or business establishment within the state, unless specifically required by state or federal law. Employees who are excepted from other law includes schools, correctional institutions, nuclear plants, employees associated with national defense, aerospace or homeland security, employees who manufacture, use, transport explosive or hazardous materials or places forbidden under federal law may prevent an employee who holds a concealed weapons license, a customer, or invitee (whether or not they hold a concealed weapons licenses) from keeping legally owned firearms in their locked motor vehicles, while on that businesses’ parking areas.

 

Further, public and private employers in Florida are prohibited from inquiring as to whether or not an employee or prospective employee is a concealed weapons license holder. Also, a public or private employer is prohibited from discriminating against an employee or expelling a customer or licensee for exercising their rights to keep and bear arms as long as the weapon is never exhibited except for defensive purposes.

There does not appear to be a law which clearly sets forth a general prohibition for a CWFL holder to carry a concealed weapon into private property, such as stores, casinos, restaurants, hotels, etc. However, a person who has been given notice by the owner or lessee of the property that their presence on the property constitutes a trespass because of the firearm, and refuses to leave, could then be subject to arrest for criminal trespass with a firearm, which is a third degree felony.

WARNING: Florida preempts all firearms laws throughout the state so that you don’t accidentally break some  local ordinance when carrying your weapon.  Even if you have a Florida Concealed Weapon and Firearms license, your pistol won’t get you in trouble but your pocket knife could put you away for a minimum of six months, cost you a great amount of money in some counties in Florida. There is currently no preemption statute to coverother carry weapons and knives.