Lawful Possession without a CWFL

 WHERE CAN I CARRY MY FIREARM WITHOUT A LICENSE?

Florida  law  allows  a  person  to  carry  a

handgun or other type of firearm concealed

or open in a few select places.

 

Your home

First, you can conceal or open carry a firearm    or any other legal weapon at your  home  or  place of business. Florida Statute §790.25(3)(n). According to the cases, home includes the inside of your house, apartment or condominium. If you live in a single- family home, then your driveway and yard are included also. Collins v. State, 475 So.2d 968 (Fla. 4th DCA 1985). However, if you live in an apartment or condominium, the common areas are off limits. See McNair v. State, 354 So.2d 473 (Fla. 3d DCA 1978); Sherrod v. State, 484 So.2d 1279 (Fla 4th DCA 1986).

 

Your business/place of employment

As noted above, Florida Statute §790.25(3)(n) allows the open or concealed carry in your place of business/employment. This was first recognized by the courts in Peoples v. State, 287 So.2d 63 (Fla 1973) and clarified to include the surrounding property in State v. Anton, 700 So 2d 743 (Fla. 2d DCA 1997). There is currently no case that informs us about common areas where a business is located such as a strip mall with a common parking lot. Likely, based on the cases regarding condominiums and apartments, it is not permissible to carry in this common area.

 

  1. Traveling to or from places where firearms are typically used Additionally, the carry of firearms is also allowed when traveling to and from places where firearms are typically used – for example, it is lawful to possess or use a firearm for fishing, hunting, or camping and when going to or returning from such an expedition; as well as while going to or from shooting if you are a regularly enrolled member of a target, skeet, or trap shooting club. Also, if you are firing weapons for testing or target practice under safe conditions, you may carry a firearm. Florida Statute §790.25(3)(g),(h),(j),(k). Significantly, if you stop to get gas or eat while on your way to fishing, hunting or camping,  you  are  no  longer  on  your  way to fishing, hunting or camping. Rather, under the law, you are now considered to be on your way to get gas or As a result, you

 

cannot carry a handgun openly, but a non-license holder may still carry a handgun in a motor vehicle as long as it is concealed and securely encased. However, long guns used for hunting may be open in the vehicle.

 

Regularly enrolled members of a modern or antique firearms collecting club can carry openly or concealed going to or from a collector’s gun show, convention, or exhibit. If you are engaged  in manufacturing, repairing, or dealing in firearms, you or your representative can carry while engaged in the lawful course of   the business. Lastly, an unloaded pistol can be carried in a secure wrapper from a place of purchase to home or to a place of business, or it may be carried back and forth between a place of repair and your home or place of business. Florida Statute §790.25(3)(g),(i),(m).

 

Openly carrying a firearm in public is not legal in Florida, except as

mentioned above. Florida Statutes §§790.053 and 790.25(3)(a)(q).

 

  1. During a state of emergency

Florida law allows anyone who can lawfully possess a firearm to carry it concealed during a declared state of emergency. However, there are certain criteria which must be met first. In order to lawfully carry a concealed firearm during a state of emergency without a CWFL all of the following must occur:

  1. You must be lawfully allowed to possess a firearm;
  2. There must be a state of emergency declared pursuant to Florida law by the Governor or local authority;
  3. There must be a mandatory evacuation ordered; and
  4. You must be in the act of evacuating within 48 hours after the

evacuation is ordered, unless the time period is extended.

See Florida Statute §790.01

 

  1. Traveling with your firearm (or other weapon)
    1. Florida law on taking a firearm in your vehicle

Concealed handguns may be carried in an individual’s vehicle in Florida without a license if the driver is over 18 years of age, and the handgun is either “securely encased” or otherwise “not readily accessible for immediate use.” Florida Statute §790.25(5). A CWFL holder may carry a concealed handgun on their person inside their vehicle with no problem. Rifles and shotguns do not need to be concealed and may be carried “anywhere in a private ‘conveyance’ when such firearm is being carried for a lawful use, which includes activities such as self-defense and hunting. Id.

 

  1. When is a concealed handgun “securely encased” or “not readily accessible for  immediate  use”  so  as  to  allow  it  in  a  vehicle? Florida Statute 790.001(17) defines “securely encased” 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.”

 

“Readily accessible for immediate use” means “that a firearm or other weapon is 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.” Florida Statute §790.001(16). Therefore, a firearm not readily accessible for immediate use would be one that is not on an individual’s person or in such close proximity that they can use it as easily as if it they were carrying it.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  1. Can a person legally conceal a handgun with their body while they are in their vehicle?

A person who does not have a CWFL may not have a concealed

handgun on their person while in their vehicle. Florida Statute

  • 790.25(5). While the statute says a concealed firearm can be carried in a vehicle, it goes on to say “[n]othing herein contained shall be construed to authorize the carrying of a concealed firearm or other weapon on the person.” Florida Statute §790.25(5). Thus, you can have the gun in the car, but you cannot carry it on your body if you do not have a CWFL. What about having a handgun on the floor of the vehicle, underneath the driver’s seat, so it is easily accessible in case of an emergency? Having the handgun so close and presumably not in a case will make it readily accessible for immediate use, therefore not allowed.

 

  1. Is it legal for the owner of a vehicle to possess a handgun when a passenger in the vehicle is a felon or is otherwise disqualified from possessing firearms?

Yes, as long as the felon (or person disqualified from ownership)

never  possesses  the  firearm.  Florida  law  focuses  on  who  has

possession of the gun. Possession can be either actual or constructive

  • actual possession is where a person has physical possession of the

 

gun and knowledge of the possession. Constructive possession is where a person who does not have physical possession of the gun nevertheless knows of its presence and has the ability to maintain control over it. Wilcox v. State, 522 So. 2d 1062, 1063 (Fla. 3rd 1988). If the felon or disqualified person either does not know about the firearm, or does not have the ability to exercise control over it (because it is in a locked glove compartment or case, for example), then they are not in constructive or actual possession of the firearm.

 

  1. May I keep a firearm in my vehicle  if  there  are  children  in  the  car? Yes, however, it is a third-degree felony crime for a person to expose another to personal injury by negligently storing or leaving a loaded firearm within the reach or easy access of a minor if the minor obtains the firearm and then uses it to inflict injury or death on him or herself or someone else. Florida Statute §784.05(1),(3). Subsection (3)(a) provides an exception for firearms stored or left in securely locked boxes or containers, or in locations where a reasonable person would have believed the firearm to be secure, or if the firearm was securely locked with a trigger

 

  1. May I possess a  firearm  while  riding  in  another  person’s  vehicle? A firearm can be carried in another person’s vehicle if it is otherwise legally carried by a CWFL holder, securely encased,

 

  1. Possessing a firearm on public transportation

Florida Statute §790.25(3)(l), allows a person to have firearms, other weapons, ammunition, and supplies on a public conveyance (which includes buses, trains, etc.) if the weapon is securely encased and not in the person’s manual possession, for instance, in the luggage compartment of a bus.

 

  1. Traveling across state lines with a firearm
    1. Federal law: qualifying for firearms “Safe Passage”

If a person wants to travel across state lines with a firearm, they may need to make use of the federal “Safe Passage” provision. This law allows individuals who are legally in possession of firearms in their state (the starting point of their travel) to travel through states that may not be as friendly to firearms owners. This protection is only available when transporting firearms across state lines for lawful purposes, and as long as the individual complies with the requirements of the Firearm Owners Protection Act, 18 U.S.C.

  • 926A, which is another name for the “Safe Passage” law. The first requirement to qualify for “safe passage” is that throughout the duration of the trip through an anti-firearm state, any firearm must be unloaded and locked in the trunk or in a container that is out of reach or not readily accessible from the passenger compartment (where the occupants of the vehicle sit). Any ammunition must also be locked in the trunk or container. Note that for the storage of both firearms and ammunition, the glove box and center console are prohibited places of storage under the statute.

 

  1. Safe Passage requires legal start to legal finish

To get protection under federal law, a gun owner’s journey must start and end in states where the traveler’s possession of the firearm is legal. For example, let’s say Joe can legally possess a Glock 17 in both Oklahoma and Vermont. Joe starts his trip in Oklahoma, planning to end it in Vermont. Even though Joe must drive through New York or Massachusetts to get to Vermont, because his starting point, Oklahoma, and his ending destination, Vermont, both allow the possession of the firearm, Joe will qualify under the Safe Passage provision. However, if the start point is Oklahoma, and the end point is New York (a place where the handgun would be

 

illegal), there is no protection under the federal law. Safe passage

requires legal start and legal finish.

 

Although traveling across state lines naturally invokes federal law, it is important to remember that whenever a person completes their journey and reaches their destination, the laws of that state control the possession, carry, and use of the firearm. Federal law does not make it legal or provide any protection for possessing a firearm that is illegal under the laws of the destination state.

 

  1. What is the definition of “traveling” for purposes of Safe Passage?

The final requirement for protection under the federal law is that

individuals MUST be “traveling” while in a firearm hostile state. The legal definition of “traveling” is murky, but has historically been interpreted narrowly by the courts. Generally speaking, if a person stops somewhere for too long, they cease to be “traveling” and, therefore, lose their safe passage protection. How long this time limit is has not been determined either statutorily or by case law with any definitiveness.

 

  1. Protection under federal law does not mean protection from prosecution in unfriendly

To  make matters worse for traveling gun owners, even if a person

qualifies for protection under the federal Safe Passage provision, New Jersey and New York treat this protection as a mere affirmative defense. This means that a person can be arrested in those states even though he or she met all of the requirements of the federal statute. The person’s only recourse is to go to court and assert federal safe passage as a defense. This becomes even more troublesome in the case where someone is legally flying with their firearms, and then

 

due to flight complications, must land in New Jersey or New York. Travelers in this position have been arrested or threatened with arrest in the past.

 

Once again, the Safe Passage provision only applies while a person is traveling. As soon as they arrive at their destination and cease their travels, the laws of that state control the carry and possession of a firearm. Remember: check all applicable state firearms laws before you leave for your destination.

 

  1. May a person keep a firearm in their hotel room?

Yes. A hotel or motel room is considered to be the private dwelling of an occupant as long as he or she is legally there, has paid or arranged to pay rent, and has not been requested to leave by management. Wassmer v. State, 565 So. 2d 856, 857 (Fla. 2nd DCA 1990). Because Florida law allows the possession of a firearm in  a person’s home (dwelling for these purposes), a person may also possess one in a hotel room if they meet the requirements above.

 

One other consideration to keep in mind is that a hotel, or any other private business, has the right and ability to prohibit entry onto their property by anyone possessing a firearm. A person who has actual knowledge that they are not permitted to enter onto or remain on private property who refuses to leave may be committing a trespass.

 

  1. Can I keep a firearm in my RV?

Yes, an RV is considered a “conveyance” under Florida law. If you choose to take a firearm in your RV, it must be securely encased or otherwise not readily accessible for immediate use, just like any other vehicle, unless you have a CWFL.

 

  1. Traveling with other weapons (billies, knives, )

In Florida, local municipalities are not allowed to make laws regarding firearms (see preemption elsewhere in this book). Florida Statutes §790.33. Local laws concerning other weapons such as knives, billie clubs, tasers, etc. are not preempted by state law, and therefore, any city or county may have their own laws concerning the carry and possession of these weapons. For example, Miami- Dade County has a section in their code of ordinances that explicitly prohibits the concealed carry of “any deadly weapon,” which includes bowie knives, razors, dirks, daggers, or any knife resembling a bowie knife.