Florida appeals court ruling on open carry creates legal confusion over gun-free zones
An appeals court decision this month striking down the state's ban on openly carrying firearms has affected another law establishing places where guns are off-limits, according to law enforcement officials and some gun rights proponents.
Attorney General James Uthmeier quickly embraced the Sept. 10 open-carry decision by a panel of the 1st District Court of Appeal as "the law of the state" and issued guidance for prosecutors, police and sheriffs, warning them not to arrest or put on trial "law-abiding citizens carrying a firearm in a manner that is visible to others."
The decision overturned a 1987 law that made it a misdemeanor to visibly display guns. While people were barred for decades from openly carrying guns, they could get concealed-weapons licenses.
Prohibited places law faces uncertainty
The appeals court ruling affected part of a law that set parameters for concealed-weapons licenses. That law says a concealed-weapons license "does not authorize any person to openly carry a handgun or carry a concealed weapon or concealed firearm into" a list of prohibited places, such as jails, bars, legislative committee meetings and police stations.
"Right now (after the appeals court ruling on open carry), in a number of places, the prohibited places don't technically apply," Sean Caranna, executive director of the gun rights group Florida Carry Inc., told The News Service of Florida on Friday. "There is going to be a brief period of time here where obviously the statutes have not caught up to the court rulings, and we're advising that sometimes discretion is the better part of valor and people should abide by the current set of places that are prohibited … when it comes to all forms of carry."
Caranna said his group will work with legislators and other "stakeholders" to tweak the law during the legislative session that begins in January.
"Nobody is trying to say that we're going to have a situation where people are allowed to carry into a jail. "Absolutely, there are places where a prohibition is appropriate, and there are going to be parameters around that," he said.
It's too early to say which spaces should be deemed off-limits for guns, Caranna said. Any changes would have to be in line with the "historical precedent based on the time of the ratification of the Second Amendment," Caranna said, pointing to U.S. Supreme Court rulings establishing that gun rights restrictions must be in keeping with the nation's "historical tradition."
"They may not be able to meet that burden, just as the state could not meet its burden for a historical precedent for the banning of open carry," he said.
Not all gun rights advocates agree that some locations should be free of firearms.
Long guns highlight legal loophole
Making a fix in state law during the session could be a heavy lift. House Speaker Daniel Perez, R-Miami, and Senate President Ben Albritton, R-Wauchula, have not signaled whether they would be amenable to such a bill, especially in an election year. The leaders' aides did not offer any insight when contacted Friday.
At least part of the issue involves the concealed-weapons law, including prohibitions on carrying handguns into prohibited places—but not addressing long guns, such as rifles.
According to a memo by David Marsey, general counsel of the Florida Police Chiefs Association, the appeals court ruling did not have an impact on the prohibition against bringing handguns into such places.
"However, a more detailed analysis" of the prohibited-spaces law "has revealed a gap that appears to preclude the enforcement of a ban on open carry of long guns in prohibited places," Marsey's memo said.
With the "abrogation" of the state's open-carry ban, "the prohibited places statute does not expressly prohibit the open carrying of long guns in prohibited places," he added.
Uthmeier twice this week said lawmakers might need to address the issue but did not specify what steps they should take.
"I know lawmakers are reading, dissecting" the court's ruling, he said Friday, adding that the decision resulted in "some inconsistencies" in laws about concealed-weapons licenses and permitless carry enacted after the open-carry ban.
"Now open carry is a constitutional, important right that people can exercise, so I'll leave it there," the attorney general told reporters during an event in Winter Haven.
The appellate ruling "makes the rest of the law a little wonky," said Polk County Sheriff Grady Judd, who was part of Friday's event announcing arrests for human trafficking.
Judd warned people to be "very, very careful." While open carry "is going to be the law," Judd said, "there are still places and times you can't carry." As an example, people are not allowed to bring firearms into private businesses that have deemed guns off-limits.
"Be cautious. Because open carry does not mean all the time, everywhere. And you'll get further direction as the Legislature meets," the sheriff said.
When asked about the long-gun issue during an appearance Thursday, Uthmeier pointed to a state law that prohibits people from the "improper exhibition of weapons." The law makes it a crime for people to exhibit "dangerous weapons and firearms … in a rude, careless, angry, or threatening manner."
"If somebody's out there acting in a dangerous way, our law enforcement is gonna step in," Uthmeier said. "So I hope people won't be dumb out there running around with long guns, pointing them at people. That's not the goal here. The founders wanted the Second Amendment to protect us from largely a tyrannical government."
Law enforcement and critics voice concerns
Many Florida law enforcement officials in the past have strenuously opposed attempts to relax the state's open-carry ban.
Pinellas County Sheriff Bob Gualtieri, who's also an attorney, said lawmakers "clearly intended" to have "sensitive spaces" where guns aren't allowed.
"Our position is that sensitive spaces must be respected, so we're going to take the necessary action to ensure that that intent is carried out," Gualtieri said in a phone interview this week.
Confusion over the appeals court ruling and its impact on other gun restrictions has resulted in "a hot mess," State Rep. Dan Daley, a Coral Springs Democrat who is a former prosecutor, told the News Service on Friday.
"This is the dog that caught the car, and now they don't know what to do with it," he said.
Daley predicted the issue could be a "hot-button" item in next year's GOP primaries.
"I don't think that the Republicans know how to handle it yet. I imagine they were as surprised as I was when the ruling came out," he said. "I don't think anybody has any clue on that side of how to deal with it yet. Meanwhile, you've got a ton of confusion out there. … It's kind of a hot mess, and it makes us less safe."