Concealed Firearms Arrest Study Problem: Law Enforcement officers making arrests for concealed firearms without sufficient probable cause that results in the case being nol- prossed, a damage claim filed in civil court for an unlawful arrest, or both. Issue: Concealed firearms are regulated by 790.01 (2), Florida Statutes, which states, in relevant part, a person who carries a concealed firearm on or about his or her person commits a felony of the third degree. While this seems fairly straight forward, there are hundreds of cases that interpret the statute with each case addressing a particular circumstance. Also, different state s attorneys have interpreted the statute differently over the years, resulting in local protocols which vary from jurisdiction to jurisdiction. The purpose of this study is to provide basic guidance to our Florida deputies for when to make an arrest. The study is not intended to provide guidance for officers defending themselves when confronted with a high- risk threat. Methodology: The Florida Sheriffs Association, to address this issue, assembled an ad hoc task force of subject matter experts to develop some general guidelines for officers to use for guidance during their decision process for making arrests for concealed firearms. These should be considered guidelines only and not intended to take the place of agency policy nor the impact of future case precedents. The task force members were: Mr. Robert Petschow, SAO 13 th Circuit Mr. William Bush, SAO 9 th Circuit* Captain Phil Royal, Citrus County Sheriff s Office Sergeant Jeff Phillips, Pinellas County Sheriff s Office
Ms. Shannon Kennedy, Pinellas County Sheriff s Office General Counsel Mr. Michael Stephenson, Florida Sheriffs Risk Management Fund attorney Mr. David Brand, Florida Sheriffs Association After studying the applicable statutes, and current case precedent, the task force met at the Pinellas County Sheriff s Office on July 12, 2013 to discuss the issues. The purpose was to develop a Best Practices study to be displayed on the Florida Sheriffs Association Center for Excellence website. *Mr. Bush could not be present at the meeting however, he reviewed the final analysis and product. Discussion: While appearing fairly straightforward, 790.01 (2) and 790.25, Florida Statutes, can be a virtual minefield filled with what ifs, and buts, with most of the confusion involving concealed firearms carried within a vehicle. This task force attempted to bring a sense of clarity by a review of applicable statutes, case precedents, and discussions regarding contemporary practices by law enforcement officers. The basis of the authority to make an arrest for a concealed firearm, and the decision process involved, is principally found in two statutes: 790.01 (2) and 790.25 (5), Florida Statutes. 790.01 (2), Florida Statutes, reads, in relevant part, A person who carries a concealed firearm on or about his person commits a felony of the third degree. 790.25 (5), F.S., reads, in relevant part, it is lawful for a person 18 years of age or older to possess a concealed firearm or other weapon for self- defense or other lawful purpose within the interior of a private conveyance, without a license, if the firearm or other weapon is securely encased or is otherwise not readily accessible for immediate use. Nothing herein contained prohibits the carrying of a legal firearm other than a handgun anywhere in a private conveyance when such firearm is being carried for a lawful use. Nothing herein contained shall be construed to authorize the carrying of a concealed firearm or other weapon on the person. The challenge for our Florida deputies encountering the different ways and circumstances that firearms may be carried, involves making decisions regarding whether to arrest on the scene, seize the firearm and consult with the State s Attorney regarding an arrest warrant, or to document their actions and leave the scene without making an arrest. Findings: In any concealed firearms arrest decision, the prefacing factor should be the intent of the legislature. As articulated, in relevant part, in Chapter 790, Florida Statutes, the legislature indicates as a matter of public policy and fact that it is necessary to promote firearms safety and to curb and prevent the use of firearms in crime and by incompetent persons without prohibiting the lawful use in defense of life, home, and property 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. 1 Note: There is a much stronger statement of Legislative intent in section 790.251 (3).
When is it unlawful for a citizen to carry a concealed firearm on his/her person? Any person who carries a concealed firearm on or about his or her person commits a felony of the third degree. 2 A concealed firearm is defined in Florida Statutes as any firearm which is carried on or about a person in such a manner as to conceal the firearm from the ordinary sight of another person. 3 Exceptions are: State, local and federal law enforcement officers. 4 Those persons who have a valid concealed carry permit issued by the Florida Department of Agriculture and Consumer Services. 5 Or, by states with reciprocity. Public Defender investigators while carrying out official duties. 6 Investigators employed by the capital collateral regional counsel while actually carrying out official duties. 7 Retired officers who are authorized to carry a concealed firearm under H.B. 218. When is it lawful for a citizen to carry a concealed firearm in a private conveyance? It is lawful for a person 18 years of age or older to possess a concealed firearm for self- defense or other lawful purpose within the interior of a private conveyance, without a license, if the firearm is securely encased or is otherwise not readily accessible for immediate use. 8 The statute continues to state that nothing in the statute is construed to authorize the carrying of a concealed firearm on the person. Additionally, there is no prohibition against a legal firearm other than a handgun anywhere in a private conveyance when it is being carried for a lawful use. Readily accessible for immediate use is defined as a firearm or other weapon carried on the person or within such close proximity and in such a manner that it can be retrieved and used as easily and quickly as if carried on the person. 9 Current case law indicates that the firearm must be either loaded 10 or have the ammunition readily accessible where the firearm could be quickly loaded 11 to be in violation of the statute. Securely encased is defined as in a glove compartment, whether or not locked; snapped in a holster; in a gun case, whether or not locked; in a zippered gun case; or in a closed box or container which requires a lid or cover to be opened for access. 12 Readily accessible for immediate use and securely encased is where the fabled Two- Step rule of law, which is actually non- existent, originated. Notice that the statutory definition indicates securely encased OR is otherwise not readily accessible.
It is unlawful for any person to openly carry on or about his or her person any firearm. 13 Practical exceptions, such as the military, are listed in 790.25 (3), Florida Statutes. It is not unlawful for a person licensed to carry a concealed firearm to briefly and openly display the firearm unless the firearm is displayed in an angry or threatening manner, not in self- defense. This exception would apply when the firearm could be briefly seen when the person was adjusting, or taking off, an outer garment. Therefore, it would not be a violation of 790.01 (2), Florida Statutes, if the firearm is briefly seen. Practical Examples: A handgun carried in a vehicle hidden underneath a towel, in the front seat where it is readily accessible to the person, but is completely unloaded with no ammunition in the vehicle would not be considered a concealed firearm for the purpose of making an arrest pursuant to 790.01 (2), Florida Statutes. When an unsecured firearm located inside a vehicle is not loaded, the court must consider the location and accessibility of both the firearm and the ammunition in determining whether the firearm is readily accessible. 14 A handgun carried in a glove compartment, whether or not locked, is not considered a concealed firearm for the purpose of making an arrest pursuant to 790.01 (2), Florida Statutes. 15 A handgun snapped in a holster, including a holster that locks the handgun in the holster until released by pressing a button or other device, is not considered a concealed firearm for the purpose of making an arrest pursuant to 790.01 (2), Florida Statutes. 16 A handgun carried in a closed gun case, zippered or otherwise, or in a closed box or container which requires a lid or cover to be opened for access, is not considered a concealed firearm for the purpose of making an arrest pursuant to 790.01 (2), Florida Statutes. 17 Recommendations: 1. When any concealed firearms arrest policy is being developed, different disciplines and law enforcement specialties need to be involved. This should include legal counsels, prosecutors, firearms training officers, and law enforcement armorers. This is to ensure that the policy fully incorporates a thorough understanding of the law, decisions interpreting the law, the practical realities of law enforcement- citizen encounters, how different types of weapons function, how they are loaded, and the types of safeties, such as magazine safeties, firearms employ in their designs. 2. Develop squad- based training on a continuum regarding the statutes that have been cited and how they are applied. 3. Develop an education program for citizens who may be carrying a firearm on their person, or in their vehicle, regarding what they should do if an officer encounters them and how they can expect the officer to react if they don t first advise the officer of their possession of the firearm.
4. Develop brochures, to educate the gun owner community regarding this subject, to be distributed at gun shows or other appropriate venues. This study was reviewed and edited by Mr. Wayne Evans, Florida Sheriffs Association General Counsel, on August 12 th, 2013. 1 790.25 (1), Florida Statutes 2 790.01 (2), Florida Statutes 3 790.001 (2), Florida Statutes 4 790.25 (3) (d), Florida Statutes 5 790.06 (1), Florida Statutes 6 790.25 (3) (o), Florida Statutes 7 790.25 (3) (p), Florida Statutes 8 790.25 (5), Florida Statutes 9 790.001 (16), Florida Statutes 10 Ashley v. State of Florida 619 So.2d 294 (Fla. 1993) 11 State of Florida v. Weyant (No. 2D07-3609) 12 790.25 (17), Florida Statutes 13 790.053 (1), Florida Statutes 14 Ridley v. State 621 So.2d 409, 409 (Fla. 1993) 15 790.001 (17), Florida Statutes 16 ibid 17 ibid