CopyCited 1 times | Published | Supreme Court of Florida | 42 Fla. L. Weekly Supp. 239, 2017 WL 823613, 2017 Fla. LEXIS 448
PARIENTE, J. In this case, we determine the constitutionality of section 790.053, Florida Statutes (2012) (“Florida’s Open Carry Law”), first passed by the Legislature in 1987 and challenged by Norman as a violation of his right to bear arms for self-defense outside the home under both the United States and Florida Constitutions....
...A dashboard camera from a responding officer’s patrol car that captured Norman’s arrest on video “showed that [Norman’s] gun was completely exposed to public view, in its holster, and not covered by [his] shirt.” Id. at 209 . *23 Norman was charged with Open Carrying of a Weapon (firearm) in violation of section
790.053, Florida Statutes (2012), a second-degree misdemeanor carrying a maximum penalty of a $500 fine and a term of imprisonment not exceeding 60 days. See id.; see also §§
775.082,
775.083, Fla. Stat (2012). Prior to trial in the County Court of St. Lucie County, Norman filed five motions to dismiss and challenged the constitutionality of section
790.053 on various grounds. See Norman,
159 So.3d at 209 . The county court reserved ruling on Norman’s motions to dismiss until after the jury trial. After the jury found Norman guilty of the sole count of openly carrying a firearm in violation of section
790.053, the county court denied Norman’s motions to dismiss, but certified the following three questions of great public importance to the Fourth District: 3 I....
...ply to [Norman.]” Id. at 209-10 . Norman does not challenge this conclusion before this Court. In analyzing the two other certified questions, which Norman does challenge, the Fourth District affirmed the trial court’s rulings “by holding that section 790.053, which generally prohibits the open carrying of firearms, is constitutional,” and that “exceptions to the prohibition against open carry constitute affirmative defenses to a prosecution for a charge of open carry.” Id. at 209 . Addressing the constitutionality of section 790.053, the Fourth District applied “a two-step analysis” that has “been employed by the majority of the federal circuit courts to consider Second Amendment challenges since the Supreme Court’s decision in [District of Columbia v....
...The second step determines the appropriate level of scrutiny to apply to the challenged law if the law burdens conduct falling under *24 the scope of the Second Amendment right. Id. at 210-11. The Fourth District concluded that under the first prong of its analysis, section 790.053 burdens the right, but “does not improperly infringe on Florida’s constitutional guarantee, nor does it infringe on ‘the central component’ of the Second Amendment—the right of self-defense” because a citizen may still carry a firearm under the concealed carry licensing scheme....
...at 628 n.27,
128 S.Ct. 2783 ). After reviewing various federal circuit court decisions that have considered challenges to laws impacting the Second Amendment right, the Fourth District concluded that “intermediate scrutiny is the proper standard to apply to section
790.053.” Id....
...cacy, but nonetheless concluded that this second prong of the intermediate scrutiny test was met because “courts have traditionally been more deferential to the legislature in this area.” Id. at 223. Therefore, the Fourth District concluded that section 790.053 passed the intermediate scrutiny test. Id. The Fourth District then considered Norman’s other constitutional challenges to section 790.053: that the law was unconstitutionally overbroad and that Florida’s shall-issue concealed-carry licensing scheme was not an alternative channel to exercise the Second Amendment right, making the open carrying of a firearm the only available avenue for exercising the right. Id. at 223, 225. The Fourth District declined “the invitation to consider [Norman’s] challenge to Florida’s open carry restriction using an overbreadth analysis.” Id. at 225. As to Norman’s other constitutional challenge to section 790.053, the Fourth District concluded that “open carry is not the only practical avenue by which [Norman] may lawfully carry a gun in public for self-defense....
...ise of their Second Amendment rights.” Id. at 226. Addressing the other two certified questions, the Fourth District concluded that under Hodge v. State,
866 So.2d 1270 (Fla. 4th DCA 2004), since “the exceptions are not in the enacting clause of section
790.053, but are contained within a separate statute altogether,” the exceptions are affirmative defenses....
...See §
790.06, Fla. Stat. (2012). Shortly after the Act went into effect, the Legislature passed in a special session House Bill 28-B, which prohibited the open carrying of firearms. See ch. 87-537, Laws of Fla, (1987). House Bill 28-B was later codified in section
790.053, Florida Statutes (1987)....
...(b) A nonlethal stun gun or dart-firing stun gun or other nonlethal electric weapon or device that is designed solely for defensive purposes. (3) Any person violating this section commits a misdemeanor of the second degree, punishable as provided in s.
775.082 or s.
775.083. §
790.053, Fla....
...ely unchanged since its passage in 1987. See ch. 2011-145, § 1, Laws of Fla. (2011). Under Florida’s current statutory scheme, specifically Florida’s Open Carry Law, openly carrying a firearm is illegal outside of the enumerated exceptions. See § 790.053....
...In light of Heller’s clarification that the federal right under the Second Amendment is not unlimited, the Florida right is, thus, consistent with the federal right. III. DETERMINING THE APPROPRIATE LEVEL OF SCRUTINY In reviewing Norman’s claim that section 790.053 violates the Second Amendment to the United States Constitution, we apply the two-step analysis that has been employed by the United States Court of Appeals for the Eleventh Circuit in GeorgiaCarry.Org, Inc....
...cating the “central component” of the Second Amendment—the right of self-defense. Thus, we turn to step two. We must next determine the appropriate level of scrutiny to apply in reviewing the validity of Florida’s Open Carry Law, codified in section 790.053....
...Bonidy v. U.S. Postal Serv.,
790 F.3d 1121, 1126 (10th Cir. 2015) (emphasis added). In accordance with the federal courts that have considered the issue and in accordance with the analytical framework set forth by the Fourth District in Norman, we review section
790.053—Florida’s Open Carry Law—under intermediate scrutiny. *39 IV. REVIEWING SECTION
790.053 UNDER INTERMEDIATE SCRUTINY As we have explained, under intermediate scrutiny, the challenged law “must be substantially related to an important governmental objective.” Clark, 486 U.S....
...the asserted objective be reasonable, not perfect.” Marzzarella,
614 F.3d at 98. Regarding the first prong of the intermediate scrutiny test—whether the law has an “important governmental objective”—the governmental interests furthered by section
790.053 are undoubtedly important....
...Thus, we conclude that the State has satisfied the first prong of intermediate scrutiny, as the government’s interest in ensuring public safety by reducing firearm-related crime is undoubtedly critically important. As to the second prong of intermediate scrutiny, our task is to determine whether section 790.053 “reasonably fits” or “substantially relates” to the stated government purpose of public safety and reducing gun violence....
...awful recreational activities—while still permitting those guns to be carried, albeit in a concealed manner, reasonably fits the State’s important government interests of public safety and reducing gun-related violence. Accordingly, we hold that section 790.053 survives intermediate scrutiny review and is not unconstitutional under the Second Amendment. Our review of section 790.053 does not end here, though, as we must also analyze whether section 790.053 is unconstitutional under Florida’s freestanding constitutional right to keep and bear arms for self-defense. Y. FLORIDA CONSTITUTIONAL CHALLENGE TO SECTION 790.053 We have already determined that Florida’s Open Carry Law survives intermediate scrutiny when considering whether the law violates the Second Amendment....
...n); Davis,
146 So.2d at 895 (holding valid law making it a criminal offense to carry in one’s manual possession a pistol, Winchester rifle or other repeating rifle in county without a license from county commissioners). Therefore, we conclude that section
790.053, which regulates one manner of carrying arms in public, is not subject to strict scrutiny review. Accordingly, consistent with our conclusion that section
790.053 passes constitutional muster under intermediate scrutiny, and therefore does not violate the Second Amendment, we hold that section
790.053 does not violate article I, section 8, of the Florida Constitution under the same standard. CONCLUSION We hold that section
790.053 does not unconstitutionally infringe on the Second Amendment right to bear arms, as interpreted by the United States Supreme Court in Heller and McDonald, or the Florida Constitution’s freestanding right to bear arms subject to the Legislature’s authority to regulate the use and manner of doing so. Because section
790.053 regulates only one manner of bearing arms and does not impair the exercise of the fundamental right to bear arms, we approve the Fourth District’s well-reasoned decision in Norman upholding the constitutionality of section
790.053 under intermediate scrutiny....
...2013) (noting that “no circuit has accepted an overbreadth challenge in the Second Amendment context.”). Accordingly, we do not address this claim. We also do not discuss Norman's claim that the exemptions under section
790.25(3) are elements of the crime of openly carrying a firearm under section
790.053 because we find this claim is devoid of merit....
...Representative Johnson contended that because section
790.10 made it unlawful for an individual to “exhibit the [firearm] in a rude, careless, angry, or threatening manner, not in necessary self-defense,” the open carrying of firearms was already illegal. . The lengthy list of exceptions to section
790.053 and section
790.06 includes: (a) Members of the Militia, National Guard, Florida State Defense Force, Army, Navy, Air Force, Marine Corps, Coast Guard, organized reserves, and other armed forces of the state and of the United States,...
...2012) (same); United States v. Williams,
616 F.3d 685, 692 (7th Cir. 2010) (subjecting federal law banning felons from possessing firearms to intermediate scrutiny). . Norman contends that because the Declaration of Policy for chapter 790 was enacted prior to the enactment of section
790.053, based on this Court’s decision in Florida Virtual Sch....
...wed as the clearest and most recent expression of legislative intent.” Id (quoting Palm Beach Cty. Canvassing Bd. v. Harris,
772 So.2d 1273, 1287 (Fla. 2000)). The Legislature was aware of the Declaration of Policy contained in section
790.25 when section
790.053 was first enacted in 1987. It has further been aware of the Declaration of Policy in the five times the Legislature has amended or revised section
790.053. Put simply, the enactment of section
790.053 did not abrogate chapter 790’s Declaration of Policy.
CopyPublished | Florida 3rd District Court of Appeal
...r conducted a traffic stop
of a vehicle driven by Adams. During the stop, the officer observed a loaded
handgun on top of the passenger seat. Adams was subsequently arrested
and charged with one count of open carrying of a weapon in violation of
section
790.053, Florida Statutes (2022),1 and one count of resisting an
officer without violence in violation of section
843.02, Florida Statutes.
1
Section
790.053(1), Florida Statutes (2022) provides:
Except as otherwise provided by law and in
subsection (2), it is unlawful for any person to
openly carry on or about his or her person any
firearm or electric weapon or device....
...manner, to briefly and openly display the firearm to
the ordinary sight of another person, unless the
firearm is intentionally displayed in an angry or
threatening manner, not in necessary self-defense.
§ 790.053(1), Fla....
...And therefore I hold that a
6
defendant driver traveling in a private vehicle with a
licensed gun on the passenger seat, a lawfully owned
gun with a permit, is not openly carrying a weapon on
or about his person to support a charge under
790.053....
...2004), wherein the Florida
Supreme Court defined the term “carry” as “holding, supporting, or bearing.”
The trial court ruled:
[T]he Court adopts the Florida Supreme Court’s
interpretation of the word ‘carry’ in the context of Fla.
Stat. § 790.053 and holds that a defendant driving a
private vehicle with a firearm on the passenger seat,
which defendant was not alleged to have held,
supported, or borne said firearm, does not ‘openly
carry such firearm on or about his or her person’ for
purposes of sustaining a charge of open carry under
Fla. Stat. § 790.053.
This appeal followed.
II.
“Whether the trial court properly granted a motion to dismiss pursuant
to Rule 3.190(c)(4) is reviewed de novo.” State v....
CopyPublished | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 2178, 2015 WL 669582
...2011).
Dale Norman (“Defendant”) was arrested while openly carrying a
firearm. Video taken before his arrest showed that the gun was completely
exposed to public view, in its holster, and not covered by Defendant’s shirt.
Defendant was subsequently charged with Open Carrying of a Weapon (a
firearm) in violation of section 790.053, Florida Statutes (2012)....
...conducting himself or herself in the manner allowed?
III. Does the recent “brief and open display” exception
unconstitutionally infect the open carry law by its vagueness?
Based on the reasons set forth below, we answer the first question by
holding that section 790.053, which generally prohibits the open carrying
of firearms, is constitutional....
...because under the facts of the case this exception did not apply to
Defendant. Therefore, we affirm the trial court’s rulings.
I. The Constitutionality of Florida’s Statutory Scheme Related to the
Open Carry of Firearms
Defendant challenges section 790.053 by claiming it unconstitutionally
infringes on his Second Amendment rights by prohibiting “the carry of
firearms that are unconcealed even for those people to whom the state has
issued a license to carry a concealed weapon or firear...
...02 F.3d at 936).3
b. The Nature of the Infringement
Because we have held that carrying a handgun outside the home for
self-defense comes within the meaning of “bear[ing] Arms” under the
Second Amendment, we must now determine whether section 790.053
infringes on constitutionally protected conduct....
...now guaranteed by law and decisions of the courts of Florida,
and nothing herein shall impair or diminish any of such
rights.
§
790.25(4), Fla. Stat. (2012).
As part of chapter 790, the Florida legislature also enacted the statute
in question, section
790.053. This statute prohibits the open carrying of
loaded or unloaded handguns in most public areas except under limited
circumstances. Under section
790.053, entitled “Open carrying of
weapons,” the statute provides:
9
(1) Except as otherwise provided by law and in subsection
(2), it is unlawful for any person to openly carry on or about
his or her person any firearm or electric weapon or device....
...nonlethal electric weapon or device that is designed solely for
defensive purposes.
(3) Any person violating this section commits a
misdemeanor of the second degree, punishable as provided in
s.
775.082 or s.
775.083.
§
790.053, Fla. Stat. (2012).
Additionally, section
790.25(3), Florida Statutes, limits the application
of section
790.053 as follows:
LAWFUL USES.—The provisions of ss.
790.053 and
790.06 do
not apply in the following instances, and, despite such
sections, it is lawful for the following persons to own, possess,
and lawfully use firearms and other weapons, ammunition,
and supplies for lawfu...
...concealed carry, does not improperly infringe on Florida’s constitutional
guarantee, nor does it infringe on “the central component” of the Second
Amendment—the right of self-defense. Heller I,
554 U.S. at 599.
e. Constitutionality of Section
790.053
In light of Florida’s “shall-issue” permitting scheme and the relative
ease in which a law-abiding citizen may obtain a license to carry a firearm
outside the home, we now turn our attention to what level of scrutiny
should...
...702, 720-21 (1997) (discussing
fundamental liberties and stating that strict scrutiny applies to “rights and
liberties which are, objectively, ‘deeply rooted in this Nation’s history and
tradition.’” (quoting Moore v. City of E. Cleveland,
431 U.S. 494, 503
(1977))). However, as previously explained, section
790.053 does not
improperly infringe on the Second Amendment’s core right of self-
defense.13 As such, strict scrutiny is not necessarily the applicable test to
13 Since in McDonald the Court held that the Second Amendment is applied to
the states through the Fourteenth Amendment, 561 U.S....
...While Second Amendment
jurisprudence is still in its infancy and the scope of the Second
Amendment is not yet clearly defined, see Marzzarella,
614 F.3d at 101,
we believe, and the weight of authority from various jurisdictions leads us
to conclude, that intermediate scrutiny is the proper standard to apply to
section
790.053.
Regarding the first prong of the intermediate scrutiny test, the State
asserts that public safety is the paramount interest furthered by the ban
on open carry....
...both open and concealed
carry at the same time. Any complete prohibition on public carry would
“violate[] the Second Amendment and analogous state constitutional
provisions.” Drake,
724 F.3d at 449 (Hardiman, J., dissenting).
In our opinion, section
790.053 does not effectively enjoin responsible,
law-abiding citizens from the right to carry a firearm in public for self-
defense....
...is contained in a
subsequent clause or statute, that is a matter of defense
requiring the defendant to put forth some evidence in support
thereof.
Id.
In the instant case, the exceptions are not in the enacting clause of
section
790.053, but are contained within a separate statute altogether.
See §
790.25(3). The trial court properly read section
790.053 in
conjunction with section
790.25(3), which sets forth specific persons,
places, and activities where it is legal to “own, possess, and lawfully use”
(and in some cases openly display), firearms without first obtaining any
permit or license....
...Defendant Does not have Standing to Challenge the “Brief and Open
Display” Exception.
Defendant further argues that the open carry statute is
unconstitutionally vague as to what constitutes a “brief” and open display
of a firearm. Section 790.053 contains the following exception:
It is not a violation of this section for a person licensed to carry
a concealed firearm as provided in s....
