The problems with Florida "Open Carry" bills -- and what you can do to help

The "open carry" bill will likely continuously hit the Legislature every year, but each year the legislation presented has had SERIOUS DRAFTING ISSUES that could really backfire on gun owners.  The purpose of this article is to alert you to those by examining the likely "bad" drafting issues these bills will continue to have, and the easy fix -- assuming anyone in the Legislature will lower themselves to admit I might actually know what I'm talking about, and have been warning them about for years:

Orange highlight =  problem areas of bill
Green highlight =   text I've inserted to correct some problems
Yellow highlight =  My reasoning and recommendations for needed changes


A bill to be entitled
An act relating to weapons and firearms; creating s.  790.0015, F.S.; providing that certain persons and  public entities that infringe on specified rights of  an individual may be subject to liability under  specified provisions and have no immunity; providing  an exception; providing construction; creating s.  790.0016, F.S.; providing that an employer may direct  an employee regarding weapons; providing that an  employee has no cause of action against an employer  regarding such direction; providing construction;  amending s. 790.02, F.S.; specifying that a law  enforcement officer may arrest a person for the  unlicensed carrying of a concealed weapon only upon  reasonable suspicion or probable cause that such a  violation is being committed; amending s. 790.053,  F.S.; providing that a person licensed to carry a  concealed firearm or concealed weapon may also openly  carry such firearm or weapon as long as such person is  in compliance with specified provisions; authorizing a  public hospital to prohibit the open carrying of  weapons and firearms; providing requirements for  openly carrying such firearm; specifying circumstances  under which a person may not openly carry a firearm;  providing that a person illegally present in the  United States is ineligible for a license to carry a  concealed weapon or a concealed firearm; providing  that a person illegally present in the United States  is ineligible for a license to carry a concealed weapon or a concealed firearm; amending s. 790.06,  F.S.; providing that certain legislators may carry a  concealed weapon or firearm in meetings of the  Legislature; amending s. 790.25, F.S.; revising  legislative findings concerning the possession and  carrying of weapons and firearms; providing an  effective date.

Be It Enacted by the Legislature of the State of Florida:
Section 1.  Section 790.0015, Florida Statutes, is created  to read:
790.0015  Infringement of rights; penalties; construction.—
(1)  Section 790.33, including the penalty provisions of s.  790.33(3)(c), (d), (e), and (f), apply to any person or entity  infringing upon the rights conferred by this chapter, chapter  776, s. 8, Art. I of the State Constitution, or the Second  Amendment to the United States Constitution. Notwithstanding any  other law, no immunity applies to persons or entities infringing  upon such rights in violation of s. 790.33.
(2)  This section is not intended to restrict a law  enforcement officer's ability or authority to conduct  investigations as otherwise authorized by law.
(3)(a)  This chapter, chapter 776, s. 8, Art. I of the  State Constitution, and the Second Amendment to the United  States Constitution do not modify or diminish the rights of a  private owner or lessee of real property or its agent, or a  private employer, to prohibit the possession of a firearm on  real property or at the place of employment or to post or  display written notice or otherwise directly communicate to any  person on the real property or at the place of employment that  the possession of a firearm is prohibited.


This wording is dangerous as it automatically makes the act of entry, either open carry or concealed – into a felony “armed trespass”.  The language highlighted should be removed, as “direct communication” is already the law.  If you really want a sign law – then it should be specifically to prohibit only open carry – as that would allow concealed carry except where the property owner communicated otherwise to the CWL holder.  Failure to remove this language will cause a substantial restriction in where CWL holders can currently carry.

(b)  This chapter, chapter 776, s. 8, Art. I of the State  Constitution, and the Second Amendment to the United States  Constitution do not expand any existing duty of, or create any  additional duty for, a private owner or lessee of real property  or its agent, or a private employer.

Section 2.  Section 790.0016, Florida Statutes, is created  to read:
790.0016  Employer weapons policies.—An employee shall not  have a cause of action against an employer related to  disciplinary action of the employer, including termination of  employment, resulting from the failure of the employee to comply  with an order of the employer to carry or not carry, or relating  to the manner of carrying, a weapon on his or her person during  work hours. This section does not impair a cause of action  against an employer which arises under another law.
Section 3.  Section 790.02, Florida Statutes, is amended to  read:
790.02  Officer to arrest without warrant and upon probable  cause.—The unlicensed 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 suspicion grounds or probable cause to believe  that the offense of unlicensed carrying of a concealed weapon is  being committed.

The prior subsection is legally and constitutionally wrong.  While a person may be lawfully stopped for an investigatory detention on “reasonable suspicion” (which is Less than probable cause), an arrest may be made only upon “probable cause”.  This is long standing Fourth Amendment constitutional law.  The elimination of “reasonable suspicion” would cure the issue.



Section 4.  Section 790.053, Florida Statutes, is amended  to read:
790.053  Open carrying of weapons.—
(1)(a)  Subject to the restrictions and limitations of ss.  790.06 and 790.10 and except as provided in paragraph (b), a  person licensed to carry a concealed weapon or concealed firearm  pursuant to this chapter may [ALSO] openly carry such weapon or  firearm; however, except as otherwise provided by law and in  subsection (3) (2), it is unlawful for any other person to  openly carry on or about his or her person a any firearm or  electric weapon or device.{{EXCEPT AS OTHERWISE AUTHORIZED BY LAW}} 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.

The word “also” should be added, otherwise there is a chance the subsection will be read as restricting concealed carry, and only allowing open carry.  “Also” totally clarifies this issue.

(b)  Notwithstanding paragraph (a), a public hospital may  prohibit a licensee from openly carrying a weapon or firearm.

(2)  A firearm that is openly carried under this section by  a licensee may be loaded or unloaded and must be carried on or  about the licensee in a holster that is wholly or partially  visible or carried on or about the licensee in a case or bag  that is wholly or partially visible.

The subsection is legally incorrect as a firearm in a case or bag is already “concealed” and not “openly carried” according to long standing case law.  Therefore, the current wording changes the law on what “open carry” means, and can only lead to serious problems.

(3)(2) A person may openly carry, for purposes of lawful  self-defense:
(a)  A self-defense chemical spray.
(b)  A nonlethal stun gun or dart-firing stun gun or other  nonlethal electric weapon or device that is designed solely for  defensive purposes.
(4)(3) Any person [WILLFULLY] violating this section commits a  misdemeanor of the second degree, punishable as provided in s.  775.082 or s. 775.083.

The word “willfully” should be added to make any negligent or inadvertent act noncriminal.  Otherwise, the subsection could set a trap for the unwary CWL holder that would not only render innocent conduct a crime, but also result in loss of their CWL.

(5)  Notwithstanding any other provision of law, a person  may not openly carry a firearm if the person is under the  influence of an alcoholic beverage, a chemical substance as  described in s. 877.111, or a controlled substance as defined in  chapter 893 when he or she is affected to the extent that his or  her normal faculties are impaired. {{EXCEPT IN LAWFUL SELF DEFENSE]]

“Lawful self defense” must be added, otherwise a individual who is completely entitled to use lawful self defense who had a bit too much to drink, would now be engaging in “criminal conduct” in defending themselves simply because they might be home when attacked, and had a few beers.

Section 5.  A person illegally present in the United States  is ineligible for a license to carry a concealed weapon or a  concealed firearm under chapter 790, Florida Statutes.

I have no idea why this is added as you must already be a lawful resident alien under the laws of the United States or a citizen to get a Florida CWL per the statute, 790.06.  However, it doesn't hurt to add it -- it is just totally unnecessary as it is already the law.


Section 6.  Paragraph (a) of subsection (12) of section  790.06, Florida Statutes, is amended to read:
790.06  License to carry concealed weapon or firearm.— (12)(a)  A license issued under this section does not  authorize any person to openly carry a handgun or carry a  concealed weapon or firearm into:
1.  Any place of nuisance as defined in s. 823.05;
2.  Any police, sheriff, or highway patrol station;
3.  Any detention facility, prison, or jail;
4.  Any courthouse;
5.  Any courtroom, except that nothing in this section  would preclude a judge from carrying a concealed weapon or  determining who will carry a concealed weapon in his or her  courtroom;
6.  Any polling place;
7.  Any meeting of the governing body of a county, public  school district, municipality, or special district;
8.  Any meeting of the Legislature or a committee thereof, except that this section does not preclude a member of the  Legislature who is a licensee from carrying a concealed weapon  or concealed firearm in such meeting;
9.  Any school, college, or professional athletic event not  related to firearms;
10.  Any elementary or secondary school facility or  administration building;
11.  Any career center;
12.  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;
13.  Any college or university facility unless the licensee  is a registered student, employee, or faculty member of such  college or university and the weapon is a stun gun or nonlethal  electric weapon or device designed solely for defensive purposes [and the weapon does not fire a dart or projectile]; or a self defense chemical spray or dart firing stun gun.

Adding a “self defense chemical spray” and “dart firing stun gun”, and eliminating any conflicting wording is long overdue,  definitely needed, would be easy to do, and  would make much more sense than the current subsection.  A stun gun requires intimate body contact to use, and often has insufficient power for effective defense, whereas a Taser type weapon or pepper spray can be used from a distance of ten to fifteen feet, are much more effective as a defensive weapons, and have an almost totally “defensive” use.  It makes no sense to require a student or faculty member to engage in hand-to-hand combat with a stun gun, when widely available better and safer weapons are available, and leave no lasting harm on an attacker. 

14.  The inside of the passenger terminal and sterile area  of any airport, provided that no person shall be prohibited from  carrying any legal firearm into the terminal, which firearm is  encased for shipment for purposes of checking such firearm as  baggage to be lawfully transported on any aircraft; or
15.  Any place where the carrying of firearms is prohibited  by federal law.  [except no Florida law enforcement officer shall make an arrest based on federal law where Florida law would otherwise permit such conduct, and such shall not be considered "criminal conduct" under Florida law.}

While this is the current law, I simply warn that this should be changed  to my suggestion -- as being in a post office parking lot could now be "criminal conduct" that would negate your self defense rights, as well as many other issues that Florida allows, but is against federal law -- like a securely encased firearm in a vehicle traveling within 1000 feet of a school zone with no CWL.  These situations should not be considered "criminal conduct" that would negate your self defense rights under Chapter 776.


Section 7.  Subsection (1) of section 790.25, Florida  Statutes, is amended to read:
790.25  Lawful ownership, possession, and use of firearms  and other weapons.—
(1)  DECLARATION OF POLICY.—The Legislature finds as a  matter of public policy and fact that the possession and   carrying of weapons and firearms by law-abiding individuals for  lawful purposes, including self-defense, enhances public safety  and that it is necessary to promote firearms safety and to curb  and prevent the use of firearms and other weapons in crime and  by incompetent persons without prohibiting the lawful use in  defense of life, home, and property, and the use by United  States or state military organizations, and as otherwise now  authorized by law, including the right to use and own firearms  for target practice and marksmanship on target practice ranges  or other lawful places, and lawful hunting and other lawful  purposes.
Section 8.  This act shall take effect upon becoming a law.