Florida Firearms – Law, Use & Ownership – cumulative update 7th edition only, for August 2014
copyright 2014 by jon h. gutmacher
This is a cumulative update for the 7th edition of the book printings in 2013 - 2014, only, including the "2014" version of the 7th edition. Major changes include a correction to flare inserts, and the addition of a brief summary of HB 89 passed in the 2014 legislative session. The page or chapter number for the "2014" version of the 7th edition prefaces each change or update. An update in "chart form" will be available on my website by mid-August for download. You may download and distribute this update so long as the full title and my copyright information is included. The update is currently in draft form, and may be revised before hitting the website in August, so you may want to wait until then, and just use this as a reference until then:
16-20 Weeks v. State, 39 Fla. L. Weekly D 35 (Fla. 1DCA 2013), clarifies the mess created by the Bostic case. In Weeks, the appellate court held that only the firing or ignition mechanism of a gun determines whether it qualifies as an “ antique replica” or "antique firearm" regardless of the date of manufacture, or whether it has other features such as a scope. Thus, a black powder muzzle loader with a percussion cap firing system qualified as a “replica” with the court finding the statute is unconstitutionally vague as to what exactly a “replica” is not, and a felon could not be convicted for having such a gun. Conflict with the Bostic case was certified to the Florida Supreme Court. Thus for now, it depends in what part of Florida you live as to what an “antique” firearm is, or isn’t – at least until the Florida Supreme Court settles it.
30 Effective July 1, 2013, Florida Statute 790.065 has been amended by extending the definition of “committed to a mental institution” to include anyone admitted per the Baker Act for involuntary examination where the examining physician found the person to be an imminent danger to themself or another, and the person agrees to voluntary treatment after being furnished written notice that they may lose certain firearm and CWP rights if they agree. There are other requirements, and there is a court procedure to restore firearm rights upon proof that the person “will not be likely to act in a manner dangerous to the public safety, and the granting of relief would not be contrary to the public interest.”
80 The Florida Department of Agriculture, Division of Licensing website has changed to:
72 new reciprocity – Iowa has been added, Washington deleted, and Pennsylvania only recognizes the Florida CWP for actual Florida residents.
135 Correction: BATFE has determined that any smooth bore insert fitted into an emergency rescue flare gun or flare launcher to allow firing of a cartridge or shotgun shell makes the device “any other weapon” under the National Firearms Act, whereas a rifled bore insert of less than ½ inch diameter would be considered an ordinary “pistol” if all the other characteristics of a pistol were retained. Catastrophic failures have occurred in flare guns using some inserts. See, ATF 2/25/2010 opinion letter 903050:MCP – 3311/2010-339 at http://www.gaugemate.com/images/stories/gaugemate/batf.pdf.
113 & 171-176 In Florida Carry, Inc. v. Univ. of North Florida, 38 Fla. L. Weekly D 2592 (Fla. 1DCA 2013), the appellate court held that only a “school district” may prohibit a securely encased firearm in a conveyance, and neither a college or university qualifies as a “school district”. This confirms dicta in an earlier decision out of the Fourth District, and firmly establishes that you may have a securely encased firearm in your vehicle on any college or university campus in Florida despite any conflicting rule. Obviously, this should also apply to any other type “school” not run by and in a “school district”.
187-188 Visa Waiver program entrants are not considered “non-immigrant aliens” and therefore can rent or use firearms in the United States, and purchase ammunition anywhere. However, they still cannot purchase a firearm (except for export) unless they qualify as a resident of a state. Same for most citizens of Canada and Bermuda, unless they entered on a visa. Entry into the United States is now online through ESTA, along with a passport.
204 While a backyard range is subject to any existing noise ordinances, once it goes into operation, any later noise ordinances cannot make it illegal or a nuisance. Moreover, any new neighbors upset by a previously operating home or commercial range may not complain of noise issues. Florida Statute 823.16
211 State v. Caamano, 105 So. 3d 18 (Fla. 2DCA 2012), held that law enforcement officers are not entitled to claim immunity from criminal prosecution as to the amount of force used in making an arrest as such is totally determined by Florida Statute 776.05.
222 Brown v. State, 113 So. 3d 103 (Fla. 5DCA 2013), merely reconfirms that a deadly weapon can be used without using deadly force, and the issue is usually a jury question.
236 It is now established that Florida Statute 776.012 works independent of 776.013. Little v. State, 111 So. 3d 214 (Fla. 2DCA 2013). Unfortunately, legislative changes in 2014 contained in HB 89 have almost totally obliterated the distinctions, and substantially impaired the immunity protections that used to exist in 776.012.
249 Little v. State, 104 So. 3d 1263 (Fla. 4DCA 2013), held that Florida Statute 790.25(n), allows open or concealed carry of a firearm in any "place of business" which is defined as "simply a location where business is transacted”, thus a union official was at his “place of business” and lawfully carrying concealed without a CWP when he was in the parking lot of the union hall he was visiting for union purposes. Likewise, Santiago v. State, 77 So. 3d 874 (Fla. 4DCA 2012), reaffirmed that a person may conceal carry without a CWP at their own residence premises.
259-261 State v. Williams, 127 So. 3d 890 (Fla. 1DCA 2013), citing to prior case law held that a stray shot that caused injury to a bystander is not a criminal violation if done in lawful self defense against another.
262 CCW Safe, Patriot Legal Protection, LLC, and Armed Citizens Legal Defense Network appear to offer the most protection for self defense situations – at least on paper.
308-310 Mobley v. State, 39 Fla. L. Weekly D 64 (Fla 3DCA 2014), is probably one of the most important self defense cases involving the use of deadly force because of the fact pattern. In that case the appellate court held that the defendant was entitled to SYG immunity where he and a friend were violently attacked by two individuals. When the second man reached into his pocket the defendant believed he was reaching for a weapon and shot him dead. The appellate court, in holding that the defendant was entitled to dismissal of the charges under SYG held that: (1) it is not necessary to give a warning before using self defense, and (2) that a citizen using deadly force need not see a weapon on the other individual so long as a reasonably prudent person in those same circumstances and with the same knowledge of the defendant would have been justified in believing that, and therefore use that degree of force.
Chapter 11 HB 89 (Florida House Bill 89) passed into law in 2014 appears to have caused the following changes to self defense law: (1) you can only threaten to use “deadly force” if the unlawful conduct you are attempting to prevent would allow you to actually use “deadly force”. Otherwise, the most you can threaten is “non-deadly force”. (2) Before using or threatening to use deadly force – you must retreat (if you can do so in safety) if you are not “in a place where you have a right to be”, or if you were involved in criminal conduct at the time self defense arose.