Saturday, June 18, 2011
The New 2011 Florida Pro-Gun Laws summarized
Florida’s governor, Rick Scott, on Friday, June 17, 2011, signed the last of the three pro-firearm bills passed by the Legislature in 2011. These new laws vary, but understanding them are of critical importance to the entire firearms community. Here’s the short, but concise explanation:
SB 234: This modifies Florida Statute 790.053 (prohibitions on open carry) to allow a CWP holder to "briefly and openly display" their firearm to another person(s) so long as it is not done in an angry or threatening manner – unless in necessary self defense. The bill started as an attempt to allow total "open carry" of firearms by all CWP holders, but the majority of Floridians both within and outside the firearms community – weren’t in favor of that. Likewise, an alleged purpose of the revision was to protect CWP holders from unintentional and inadvertent exposure of their firearm. However, that was already protected under case law (ie: "lack of scienter").
However, this new law goes far beyond inadvertent disclosure – and allows a brief -- but intentional exposure. Important in the wording was the obvious elimination of the two "trouble words" found in Florida Statute 790.10 (Improper Exhibition), by eliminating the words "rude" and "careless" from the new subsection in 790.053. Important things to remember in this revision – it only applies to firearms. Thus, the horribly worded "improper exhibition" law (790.10) may still cause problems with other weapons. A different section of this new law repealed Florida Statute 790.28 – so that it is now legal to purchase a rifle or shotgun in a non-contiguous state pursuant to federal law.
HB155: This law provides a certain amount of "medical privacy" to prevent medical and emergency personnel from inquiring about firearms ownership unless they have a "good faith" belief it is necessary in treatment, and also prevents an insurance company from raising rates or denying coverage because of an insured’s ownership of firearms or ammunition.
HB45: This law revised Florida Statute 790.33 (ie: the "preemption" statute), big time, however, the effective date is October 1, 2011 -- so there are a few months to go before it takes effect:
The background was that the Legislature was faced with a myriad of complaints about local governments and administrative agencies writing ordinances and rules that restricted firearms and ammunition use and possession – and substantially interfered and conflicted with the Legislature’s sole power to make laws concerning this area. So, while the previous version did hold that all ordinances dealing with firearms or ammunition were void and unlawful, the revision extended this to all administrative agencies and all rules and regulations of any type, including state agencies with the exception of regulations by the FFWCC affecting the taking of wildlife, and any ranges it manages; and also allowing governments to set regulations for employees while on duty. Moreover, another big change is that any citizen or organization that is affected by such an allegedly unlawful rule, regulation, or ordinance may sue in a court of law for injunctive and declaratory relief and/or damages – and if they win – not only do they get the ordinance or rule tossed out – they also get their court costs, attorney fees, and legal interest. If they lose – it appears the statute will likely bar attorney fees for the defendant unless the suit was utterly frivolous! Major stuff!
Again -- this statute only applies to firearms and ammunition -- not other weapons. However, local governments are still restricted from passing laws that conflict with Florida Statutes -- although those other local laws will be presumed constitutional unless overturned in a court of law.
copyright 2011 by jon gutmacher
SB 234: This modifies Florida Statute 790.053 (prohibitions on open carry) to allow a CWP holder to "briefly and openly display" their firearm to another person(s) so long as it is not done in an angry or threatening manner – unless in necessary self defense. The bill started as an attempt to allow total "open carry" of firearms by all CWP holders, but the majority of Floridians both within and outside the firearms community – weren’t in favor of that. Likewise, an alleged purpose of the revision was to protect CWP holders from unintentional and inadvertent exposure of their firearm. However, that was already protected under case law (ie: "lack of scienter").
However, this new law goes far beyond inadvertent disclosure – and allows a brief -- but intentional exposure. Important in the wording was the obvious elimination of the two "trouble words" found in Florida Statute 790.10 (Improper Exhibition), by eliminating the words "rude" and "careless" from the new subsection in 790.053. Important things to remember in this revision – it only applies to firearms. Thus, the horribly worded "improper exhibition" law (790.10) may still cause problems with other weapons. A different section of this new law repealed Florida Statute 790.28 – so that it is now legal to purchase a rifle or shotgun in a non-contiguous state pursuant to federal law.
HB155: This law provides a certain amount of "medical privacy" to prevent medical and emergency personnel from inquiring about firearms ownership unless they have a "good faith" belief it is necessary in treatment, and also prevents an insurance company from raising rates or denying coverage because of an insured’s ownership of firearms or ammunition.
HB45: This law revised Florida Statute 790.33 (ie: the "preemption" statute), big time, however, the effective date is October 1, 2011 -- so there are a few months to go before it takes effect:
The background was that the Legislature was faced with a myriad of complaints about local governments and administrative agencies writing ordinances and rules that restricted firearms and ammunition use and possession – and substantially interfered and conflicted with the Legislature’s sole power to make laws concerning this area. So, while the previous version did hold that all ordinances dealing with firearms or ammunition were void and unlawful, the revision extended this to all administrative agencies and all rules and regulations of any type, including state agencies with the exception of regulations by the FFWCC affecting the taking of wildlife, and any ranges it manages; and also allowing governments to set regulations for employees while on duty. Moreover, another big change is that any citizen or organization that is affected by such an allegedly unlawful rule, regulation, or ordinance may sue in a court of law for injunctive and declaratory relief and/or damages – and if they win – not only do they get the ordinance or rule tossed out – they also get their court costs, attorney fees, and legal interest. If they lose – it appears the statute will likely bar attorney fees for the defendant unless the suit was utterly frivolous! Major stuff!
Again -- this statute only applies to firearms and ammunition -- not other weapons. However, local governments are still restricted from passing laws that conflict with Florida Statutes -- although those other local laws will be presumed constitutional unless overturned in a court of law.
copyright 2011 by jon gutmacher
7 comments:
- Am I reading you blog about SB234 corectly and allows a brief -- but intentional exposure so the law now allows intentional exposure? can you give a scenario as to when this applys. Thanks as always you keep us all safe.
- The blog states the correct law. I will decline on scenarios.
- Jon, I'm still confused by the new law and the legal meaning of "briefly". Is there any case law defining it or any other legal definition? I'm looking forward to your next edition which will hopefully explain this better.
- Since the law is so very new - don't expect any appellate decisions for quite some time. "Briefly" should be interpreted as just that -- a quick, momentary showing of the firearm for a lawful purpose. Since the term is obviously vague - the courts will likely use an objectively reasonable period of time. I would therefore be cautious on not trying to push the limit on this. A true "grey" area.
- How about you are standing outside the local star mega bucks coffee shop and your friend shows up, he asks "hey did you get that awesome new mega defense 9mm you were looking at?" You say "yep, wearing it right now", pulling your jacket back to briefly show your new pride and joy to your friend... legal? Seems like yes to me
- While the law seems clear on this point, and the answer to me is a definite "yes" - I urge caution as exposure in public places where a non-gunowning onlooker sees the action - can lead to issues with police who do not know, understand, or care about the law - or are just being cautious. jhg
- What happened with the portion of the bill regarding carrying on college campuses?
No comments:
Post a Comment