The following post is a legal article that explains the history and current meaning of F.S. 790.25. It is more for lawyers and judges than lay readers, but if you have an interest please feel free to take a look. However, it is copyrighted by me, and took over two months and sixty hours of research to complete. Therefore, I would ask that you do not distribute or copy it without my specific authorization, and if you use any part of it, that due credit be given to me as the author and researcher.
UNDERSTANDING ONE OF FLORIDA’S MOST CONFUSING STATUTES: F.S. 790.25
copyright 2018 by Jon H. Gutmacher, Esq.
One of the most confusing sections of Chapter 790 is 790.25(5) and its relationship to 790.25(3)(l). The only way to really understand these two sections is to undertake a historic analysis. To do that, I started with the year 1941.
EARLY STATUTES:
In 1941 there was no F.S. 790.25, and there wasn’t a concern about open carry – at least as to most long guns. In those days “open carry” was the rule of law, and concealed carry of all other weapons (other than a common pocketknife), including firearms, was a crime. F.S. 790.01 was the section that covered it, and this section stated:
“Whoever shall secretly carry arms of any kind on or about his person . . . shall be punished . . .”
Open carry of most firearms and other weapons was the general rule and was largely unregulated, although there was an exception for pistols and repeating rifles. In fact, in order to even carry a pistol or repeating rifle, just openly, you needed a separate license from each and every respective county you wanted to carry them in. F.S. 790.05:
“Whoever shall carry around with him, or have in his manual possession . . . any pistol, Winchester rifle or other repeating rifle, without having a license . . . shall . . . be punished . . . .” F.S. 790.05
This license was obtained from the county commission, and covered only pistols and Winchester or other repeating rifles. F.S. 790.06. Nothing in this statutory scheme changed until 1965.
THE 1965 CHANGES:In 1965 the Legislature added F.S. 790.25. Subsection (2) of that statute, titled
“Lawful Uses”, stated that:
“This section shall not authorize carrying a concealed weapon without a permit, as prohibited by s.790.01-s.790.04.”
However, the phrasing was extremely misleading as there was no legal or statutory means to carry concealed in any of those sections, or anywhere else in Florida law. Open carry was still strictly followed in Florida. In fact, as discussed earlier, F.S. 790.01 prohibited all concealed carry, and that applied to all “arms of any kind”. So, the actual meaning of the language was that concealed carry was still prohibited.
Once you understand that, you understand the purpose of Subsection (3). Subsection (3) was only designed to allow the carry of pistols and repeating rifles without a firearm permit in the “Exceptions” , thus the phrasing:
“Exceptions – The provisions of s. 790.05 and 790.06 shall not apply in the following instances, and despite said sections it shall be lawful for the following persons to possess and lawfully use firearms and other weapons, ammunition, and supplies for lawful purposes.”
So, it’s clear that the real purpose of this section was to allow pistols and repeating rifles to be carried without a permit – openly – just like a shotgun or non-repeating rifle in the “exception” outlined situations. Thus, there was no intention to have the “exceptions” applying to other firearms and weapons. Just “pistols” and “repeating rifles”. See, State v. Bryant, 373 So. 2d 708 (Fla. 3DCA 1979).
Why?
Because you could already legally carry and transport all of these other weapons and firearms openly, without reference to the exceptions. See, State v. Day, 301 So. 2d 469 (Fla. 1DCA 1974).
In 1968, everything began to change with the assassination of Martin Luther King, and Bobby Kennedy. Federal gun restrictions were really created in that year, and Florida made changes in 1969 that significantly changed the wording in F.S. 790.01 from making it a crime to carry all “arms” concealed, to making it a misdemeanor to carry “on or about” a person a concealed weapon, or making it a felony for carrying “on or about” a concealed firearm – and then adding a subsection (4) that exempted persons having a handgun/repeating rifle license (per 790.05) from any of the prohibitions in concealed carry. Thus, for the first time, holders of a pistol/repeating rifle license were allowed to conceal carry. However, the prohibition on carrying a pistol or repeating rifle without a firearm license still existed per F.S. 790.05 & F.S. 790.06. Moreover, when you understand the statutory history of these sections, you understand that F.S. 790.25(3)(l), which required “the weapon” to be “securely encased” while traveling in a private conveyance – was meant to cover only handguns and repeating rifles. That’s exactly what Subsection (2) stated in very clear language:
“The provisions of s. 790.05 and 790.06 shall not apply in the following instances . . . .”
The case law was conflicting, but began to interpret F.S.790.25 literally beginning with Peoples v. State, 287 So.2d 63 (Fla. 1973), where the Florida Supreme Court held that a pistol kept under a shirt on home or business premises fell directly under F.S. 790.25(3)(n), and was a defense to both open and concealed carry. Accord, French v. State, 279 So. 2d 317 (Fla. 4DCA 1973)(pistol in pocket at residence): State v. Hanigan, 312 So. 2d 785 (Fla. 2DCA 1975)(strapped revolver under front seat).
In 1977 the Legislature amended F.S. 790.06 to allow the County Commissioners to issue a “license to carry concealed pistols on the person”. A separate license was needed for each firearm so licensed. F.S. 790.05 was unchanged – and likewise s. 790.25 remained unchanged.
However, the confusing drafting of these sections, and conflicting case law was causing serious problems in the community. People were getting arrested for carrying concealed pistols in their vehicles when they were under the impression that carrying such firearms was legal. The failure of the Legislature to define “securely encased” led to some courts to holding that only a “locked” container was actually “securely” encased – while other courts held that a “two step” process of retrieval was sufficient.
In 1982 the Legislature finally had enough of the controversy, and added definitions to F.S. 790.001 for “securely encased”, and “readily accessible”, largely settling the legal controversy. “Securely encased” no longer meant “encased securely”. It simply meant that the method of encasement met the statutory definition. Likewise, the Legislature added Subsection (5) to s. 790.25 related to “Possession in Private Conveyance”:
“Notwithstanding subsection (2), it is lawful and not a violation of s.790.01 to possess a concealed firearm or other weapon for self defense . . . ,without a license, if the firearm or other weapon is securely encased . . . . Nothing herein contained prohibits the carrying of a legal firearm other than a handgun anywhere in a private conveyance . . . . Nothing herein contained shall be construed to authorize the carrying of a concealed firearm or other weapon on the person. This subsection shall be liberally construed . . . .”
In 1983 the Legislature changed the title of subsection (2) to “Uses Not Authorized”, with no appreciable changes in wording, and changed the title of subsection (3) from “Exceptions” to “Lawful Uses”, again without any appreciable wording changes. No other changes were made to the various subsections until 1987. At this point, with “securely encased” finally being statutorily defined, the case law appeared to solidly interpret F.S. 790.25 as permitting both concealed and open carry of all firearms within the exceptions. Thus, in Alexander v. State, 477 So. 2d 557 (Fla. 1985), the court held that a handgun in a man’s zippered purse qualified as a gun case, and therefore met the statutory definition even if other items were stored within the purse. City of Miami v. Swift, 481 So. 2d 26 (Fla. 3DCA 1985), affirmed a $50,000.00 civil verdict for false arrest where a fully loaded pistol was contained in a closed, but unlocked, center console – the court holding this fell squarely within the statutory definition of a closed container. See also, Dixon v. State, 831 So. 2d 775 (Fla. 4DCA 2002), holding that a fully loaded pistol in a closed but unlocked console was an exception under s. 790.25(3)(l), and that earlier cases in conflict were decided prior to the statutory changes.
In 1987 sweeping, and substantial changes were made in the statutes related to firearms that, for the most part, are still the essence of Florida firearms laws. Preemption was introduced in F.S. 790.33. F.S. 790.05 was completely eliminated. F.S. 790.06 was entirely redone to transfer all authority to issue firearm and weapon licenses to the State rather than various County Commissions, with the license covering all weapons and firearms. And, F.S. 790.053 was introduced which made “open carrying” of firearms unlawful. The reasoning that once applied to pistols and repeating firearms appears to be totally blurred, or entirely wiped out by more modern and liberal interpretation of the section and subsections by the courts.
CONCLUSION:
So, does F.S. 790.25(3)(l), apply to all firearms and weapons or just pistols and repeating rifles?
My belief is that since 1982, and certainly since the 1987 revision it is what it says it is, even though that was not the original meaning or intent. Courts are required to give statutory words and phrases their plain meaning. Firearms must be “securely encased” or “not readily accessible” when transported in a private conveyance. That’s especially true because of the addition of F.S. 790.25(5) in 1982. And to be truthful, the courts had blurred that meaning long before 1987. However, both historically and otherwise, the entire section, s. 790.25, has nothing to do with CWL holders. They can still carrying concealed and on their person despite this section and all its subsections. Likewise, s. 790.25(5) does not restrict where you keep a handgun – as long as it is either “securely encased” or “not readily accessible”. Historically, the purpose of subsection (5) was to allow pistols to be carried concealed, and without a license, within a private conveyance despite F.S. 790.05, and the drafting confusion in F.S. 790.25 (2) & (3).
And so, if anyone asks you if some of the language in F.S. 790.25 is confusing – the answer is certainly “yes”, although the case law has crystalized much of it since 1982. On the other hand, can long guns that are not “repeating rifles” be carried openly in a private conveyance without being “securely encased”? Well, while I believe there is a sound legal basis for that interpretation if you understand the history of the legislation, I personally wouldn’t try it. But, it is an arguable issue.
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endnotes:
1. In Cates v. State, 408 So.2d 797 (Fla. 2DCA 1982), the court held the firearm statutes were a “mass of conflicting rules” needing revision, and found that a pistol in a glove compartment slightly ajar was not “securely” encased. Likewise, in Ensor v. State, 403 So. 2d 349 (Fla. 1981), the court stated that a firearm was “on or about” a person even if locked within a glove compartment, with the dissent calling the statutes vague, and calling for statutory revision.
2. Extremely instructive in understanding the thinking, and state of the law back in 1982, is the House floor debate on March 23, 1982, on these changes, HB 1173. I shall excerpt them for you:
Representative Hollingsworth: [20:43] “You can already carry your weapon on the seat of the car in most instances. [ 21:25.]This bill has nothing to do with that. You can already do that. You can already carry your shotgun and rifle on your front seat. You can already carry your shotgun and rifle in your gun rack, as long as it’s in open view. In this bill, we’re going to allow you to carry the shotgun and rifle anywhere you want to in the vehicle, concealed or in open view . . . .”
Representative Reynolds: [24:33] “So what we tried to do, ladies and gentlemen, was to clarify the statute by allowing that individual to carry that firearm in the glove compartment of that car, the idea being that the weapon would not be readily accessible for the individual. There would have to be a two step motion on the part of the driver or occupant to move towards that glove compartment to retrieve that weapon giving the officer time to respond in an appropriate manner. The idea being that the weapon would not be readily accessible for the individual. [25:25. ] We were in a dilemma. If we allowed it to be on the front seat of the car we were gonna have problems because an officer would be alarmed. So, we wanted to put it in the glove compartment. That was a responsible position, ladies and gentlemen. . . . What we need, ladies and gentlemen, is to return to the original Hollingsworth position. Make it a two step motion for that individual. One the turning, and two the reaching to go for that weapon. Because the key here, for law enforcement is whether that weapon is readily accessible or readily retrievable by the individual, to give the law enforcement officer a chance to react, and take the proper caution . . . .”
Rep Hollingsworth: [38.01] “This will allow you, this piece of legislation, and all the news media to get it straight. This will allow you now to carry a concealed weapon in the unlocked pocket of your car. This will allow you to carry a concealed weapon under your front seat. This will allow you to carry a concealed weapon anywhere where it’s not readily accessible for immediate use. And, this is defined in the bill, which says as long as you cannot retrieve it as fast as is on your person then you’re gonna be allowed to carry it concealed. The rifle or shotgun. The hunter will be able to carry his rifle or shotgun anywhere in the vehicle, concealed or out in the open. If someone thinks their life is in danger, or there’s criminal activity in the area, then they can take their weapon from the concealed area and lay it next to their person in open view. Because you can already carry it in open view . . . .”
3. In Mitchell v. State, 494 So.2d 498 (Fla. 2DCA 1986), the court found that an unenclosed rifle on the back seat of a vehicle did not furnish probable cause for an arrest. Likewise, a Department of Hwy. Safety Legal Bulletin, 88-02, reviewed the 1982 enactment of the subsection and found that it did not apply to long guns.
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