A Quick Analysis of the automatic provisions of Florida Statute 870.044

A Quick Analysis of Florida Statute 870.044 – the “Automatic” prohibitions:

You’ve all seen the rioting on television. You’re all worried because you feel the need to have a firearm to protect yourself while driving or out in public, and some jurisdictions have declared “a state of emergency” because of the rioting. What are your options when in these areas, or driving through them???

Well, first – let’s look at the one giving everybody the most problems. It’s overbroad, unworkable, and likely unconstitutional as written – but – it is the current law, and violation is a crime and a first degree misdemeanor. Here’s the statute:

870.044 Automatic emergency measures.—Whenever the public official declares that a state of emergency exists, pursuant to s. 870.043, the following acts shall be prohibited during the period of said emergency throughout the jurisdiction:

(1) The sale of, or offer to sell, with or without consideration, any ammunition or gun or other firearm of any size or description.

(2) The intentional display, after the emergency is declared, by or in any store or shop of any ammunition or gun or other firearm of any size or description.

(3) The intentional possession in a public place of a firearm by any person, except a duly authorized law enforcement official or person in military service acting in the official performance of her or his duty.

Nothing contained in this chapter shall be construed to authorize the seizure, taking, or confiscation of firearms that are lawfully possessed, unless a person is engaged in a criminal act.

Obviously, the only problem here is subsection (3) – because it limits you whenever you are “in a public place”. According to its terms – you cannot possess a “firearm” while “in a public place”. Of course, the catch here is that an “antique firearm” and other weapons are not prohibited – so, you can lawfully carry and possess these other weapons under regular Florida laws where already allowed. The other “test case” possibility – and this is purely my take for now, and somewhat tenuous – that assuming you’re driving “on” a public road, street, or highway – you’re not driving “in” a public street. You’re “on” it. So, you would not fall within the statutory prohibition as long as you were also NOT driving “in” any public park, parking garage, public facility, etc. Again – not recommended – but certainly a valid argument if the “test case” ever arises. Likewise, I think the language of the statute is significantly overbroad from a constitutional standpoint. But again – that’s another “test case”, and so I can’t recommend relying on it.

Last, the last paragraph of the statute – that was added in 2006 because back in 2005 police and National Guard went door-to-door in private homes in New Orleans after Hurricane Katrina seizing any firearm they could find. That created an uproar across the country – and both the feds and Florida passed statutes that forbade the seizure of firearms unless seized from a person committing a crime.

So – now you know about the “automatic” provisions of 870.044.

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