Florida's "Open Carry" of firearms & weapons bill -- HB 163 -- My analysis (2015)

The "open carry" bill in the Florida Legislature -- 2015.
copyright 2015 by jon gutmacher

HB 163 is a new bill before the Florida Legislature that has several components, some good,  one that is very controversial, and leaves out all sorts of other things that are really needed that would fit right in.  The bill didn't make it in the 2016 legislative session.  But, let's take a look, anyway.

Let’s start with the good stuff.   First, the bill requires the judiciary to “strictly construe” any statute that implicates the right to bear arms, or right of self defense – in the strictest legal fashion possible.   It holds that the right to bear arms is a fundamental right, and that lawful carry of firearms and weapons benefits the public safety. This is obviously very good for gun owners.  It will be of major assistance in any court case.

Next, it clarifies that just because a police officer thinks you’re carrying a firearm or weapon doesn’t give him or her the right to arrest or detain you unless they also have “probable cause” to believe you’re unlicensed.   The lesser standard of “reasonable belief” is superceded.  Of course, an officer would still be able to stop you if they had a reasonable basis to believe you were about to commit a crime, or were involved in a felony.  However, they couldn’t hassle you just because they think you have a weapon on you.  Again – a good thing.

OK – let’s move to the controversial part – section 3.  That’s the right of any CWL holder to openly carry a firearm or weapon anywhere they could now carry it concealed.  Lots of gun owners like this.  Lots don’t.  I’m a don’t, as are the majority of law enforcement, the majority of the firearms industry, and the majority of firearms instructors.   The reasons?

1.   Concealed carry is working great in Florida.  It has over forty years of case law, and other things interpreting it.  Most folks (especially if they read my book) understand it.  Why screw up the works with something entirely new and different???

2.  Other states that are open carry have a history of open carry.  It’s the norm.  Florida doesn’t.  We’re used to the exact opposite.  When we tried open carry with CWL’s  back around 1987 (I think that was the year) there was a total uproar – and “concealed” became required because every urban area in Florida was screaming against it.  If anything – the sentiment would be worse, today.

3.  Florida has a fluid population, lots of tourists, lots of tourist destinations that will do everything they can to circumvent such a law on their properties, and a business community that will do the same.   It won’t work here.  Likewise, if it did pass, I can guarantee that within one to two legislative sessions the business community would force a new law that made it a crime to enter any business with a posted “no weapons” sign.  That would make your entry a felony trespass.  “Felony!”  Right now – you can do it unless they ask you to leave, or check your bags and refuse to allow you to enter.  Until then, you’re technically a “business invitee”.  But, once told to leave you become a trespasser if you don’t immediately comply.  Other open carry  states have this law.  No reason to believe it wouldn’t happen in Florida.  That would likely significantly restrict where you could go, whereas now, with a concealed weapon or firearm – nobody really cares except at the attractions.

4.  Personally, I want the element of surprise if I have to use or threaten to use a firearm.  Having it openly carried brands me as the guy who gets shot first.  Likewise, I can’t tell you how many situations I’ve heard of, or had to represent where some moron decides he’s gonna challenge the guy with the gun or weapon.  “What are you gonna do, shoot me?”   Boy, do those go bad, fast!

Next problem is what I think is a mistake in the bill if open carry is redacted, and the rest goes forward.  It pertains to a portion of subsection (3) that eliminates the right to momentarily display a fire arm or weapon by a CWL holder.   I’m just saying – if part of the bill passes without open carry – this needs to stay in – not be taken out.

Last – what is the bill missing???   Well, I’ll keep that very short since I could write several paragraphs.

First – we need a change in Florida law to allow open carry anywhere the property owner allows!  Did you know, you can’t authorize a friend to open carry on your property unless it falls within one of the exceptions in F.S. 790.25???   Stupid!  It needs to be fixed!

Second –  I'm tired of Disney screwing with everyone.   There should be a law that every hotel and motel must allow guests to keep concealed firearms and weapons in their hotel room, and securely encased and out of sight in their vehicles.  They have this in several other states.   Usually,  you're allowed to bring the firearm directly to your room from your vehicle, and directly back to your vehicle.  No stops at the snack bar.   Good law that seems fair to both the hotel industry and to the guest.  But at the very least -- it should be lawful if securely encased and out of sight in any parking lot -- no matter who owns the lot.  Hotels,  Disney,  or almost anywhere else!

Third -- rather than pure "open carry" to cure the bad arrests -- 790.053 could be amended to read that it is not open carry for a firearm or other weapon to "print" underneath clothing,  it is not open carry for an individual to unknowingly or negligently allowing a firearm or weapon to become exposed so long as they lawfully conceal it within a reasonable period upon being so informed,  and that it is not open carry for a CWL holder to momentarily show and expose their firearm or weapon to another in a non-threatening manner for one minute or less?    I'm not saying this should be used word-for-word, but it gives you an idea of what else could be done.  And to make it clear -- the rest of HB 163 is a VERY GOOD IDEA!  I just don't like subsection (3) open carry, as a per se rule.

So – that’s my short take.   I’d spend more time.  But, I’ve got other things I need to do.


jon gutmacher

** This article is a copyrighted work -- but may be distributed for non-commercial purposes so long as my copyright and authorship is clearly specified at the beginning.