MARIO GUNDE PETERS & KELLEY

– Attorneys and Counselors at Law –

Brevard County Florida

Florida Open Carry Law, What You Can and Can’t Do

Florida open carry law

July 14, 2023

Florida is one of the most permissive states for gun owners in the U.S. The right to bear arms is codified in the Florida Constitution, and the state is well-known for its shall-issue concealed carry permit ruling, implemented in 1987. In April 2023, Florida’s gun laws became even more permissive, with the passage of HB 543 making permitless concealed carry legal. As of July 1, 2023, it’s lawful to carry a concealed firearm. Florida Statute 790.25 (2) clarifies authorized and non-authorized possession and use of firearms and other weapons.

The bill makes numerous technical and conforming changes to existing laws relating to the carry of concealed weapons or concealed firearms. It materially changes many statutes already in place. This is a complex bill that makes sweeping changes to our laws. We need to be mindful that the law will be evolving based on these amended and material changes in the law.

However, Florida’s open carry laws are unique, with many rules regulating the open carrying of firearms in the Sunshine State. Understanding how Florida open carry laws work will help determine where and when you can legally open carry.

What Does Florida Law Say on Open Carry?

Open carrying refers to carrying a weapon in public and plain sight, such as in a visible holster or on the back with a sling. It should not be confused with concealed carry, which refers to carrying a hidden weapon in public, typically using a concealment holster.

Florida Statutes 790.053 and 790.25. regulate the usage and open carrying of firearms in the state: 

Florida Statute 790.053 explicitly forbids individuals from openly carrying “any firearm, electric weapon or device.” This statute theoretically makes it illegal for anyone in Florida to open carry. However, this statute applies to two exceptions: 

  • Subsection (2)(a) excludes self-defense chemical sprays from the statute, allowing an individual to open carry self-defense spray weapons such as pepper spray (OC), mace, or tear gas.
  • Subsection (2)(b) states that non-lethal electric devices explicitly designed for self-defense are excluded from this statute and may be openly carried lawfully. They include common alternatives to firearms such as CEWs, Tasers, and stun guns.

     

Florida Statute 790.25 defines the concept of “lawful uses” of possession and use of a firearm and other weapons in subsection (3). According to this statute, several weapon laws in Florida, including Statute 790.053, may not apply as long as the concept of lawful use applies. In practice, it means that if the usage or carrying of a firearm is lawful under the exceptions outlined by this statute, then open carrying becomes legal. However, these are very limited circumstances; one should be very careful in their use. The law will evolve on this issue quickly, so be careful with any use under these statutes.  

What Constitutes Lawful Use in Florida Law, and How Does it Apply to Open Carrying?

Subsections (3)(a) through (q) of Florida Statute 790.25 outline essential components of Florida open carry laws. They define categories of individuals and circumstances where Statute 790.053 does not apply, making open carrying legal for individuals and situations, including the following:

  • Active-duty members of the United States Armed Forces (Army, Navy, Air Force, Marine Corps, Coast Guard, Space Force), the National Guard, the Florida State Defense Force, and the Militia (Florida State Defense Force), when on duty, training, or preparing for military duty
  • Law enforcement officers, including prison and jail wardens, marshals, game wardens, forest officials, and other agents, while carrying out official duties in the state
  • State and federal government officers, such as public servants or government officials, with authorization to carry a weapon
  • Members of a firearms collecting organization, when attending, going directly to, or from a gun show, exhibit, or convention
  • Individuals engaged in lawful hunting, fishing, or camping or going directly to or from places to engage in such activities lawfully
  • Individuals in the business of firearms dealing, repairing, or manufacturing (e.g., Special Occupational Taxpayers as defined by the ATF) while currently engaging in their business
  • Individuals lawfully firing weapons for testing, target practice at a legal indoor range or in another place where shooting is not prohibited by law, or going directly to and from such places
  • Individuals traveling with personally owned vehicles or in public transportation when the weapon carried is securely encased
  • Individuals carrying an unloaded and securely wrapped pistol from a place of purchase to or from their home, business, or place of repair 
  • Individuals carrying weapons within their home or place of business
  • Full-time investigators employed by a state public defender or capital collateral regional counsel while on official duty, provided they meet various training standards and conditions as described in subsections (o) and (p)
  • Active-duty tactical medical professionals working to support a law enforcement unit, provided they are lawfully able to possess firearms and appointed to a law enforcement tactical unit, such as medics for SWAT teams

     

Be very careful in the use of the above statute exceptions.

None of the exceptions listed in this statute outline self-defense as an explicit lawful use. However, subsection (5) encourages a liberal interpretation of the law favoring the lawful use and carrying of firearms, including pointing a gun at another person in self-defense, provided it meets the conditions outlined in Florida Statute 766.012.

Individuals Prohibited from Open Carrying in Florida

Even if an individual meets one of the exceptions listed above, they may not lawfully carry firearms openly in Florida if they are prohibited by state or federal law to carry or possess firearms.

Federal-Level Prohibitions to Open Carry

At the federal level, certain persons may not possess or carry firearms under any circumstances in Florida or any other state. Per the ATF, an individual is a prohibited person if they are one of the following:

  • A convicted felon convicted of a crime punishable by imprisonment for over one year under any state’s criminal laws
  • A Fugitive from justice
  • An unlawful user of a controlled substance
  • An individual adjudicated by a federal court as “mentally defective” or committed to a mental institution under 27 CFR 478.11
  • An illegal alien
  • A dishonorably discharged member of the U.S. Armed Forces
  • A person who has renounced their U.S. citizenship
  • A person subject to a restraining order for stalking, harassment, threatening an intimate partner, or a child thereof
  • A person convicted of domestic violence

     

FL Open Carry Law Prohibitions

In addition to the federal prohibitions, state legislation prohibits specific individuals from openly carrying under any circumstances. According to subsection (2) of Florida Statute 790.25, these individuals are:

  • Individuals adjudicated by a Florida state court as “mentally incompetent” or recognized by the state as chronic alcoholics or addicted to narcotic substances or similar drugs.
  • Individuals using firearms in violation of specific Chapter 790 Florida Statutes, including 790.07 through 790.115, 790.145 through 790.19, and 790.22 through 790.24
  • Individuals in a “place of nuisance,” as defined in Statute 823.05, such as an illegal gambling hall, unless these individuals are law enforcement officers or are present for other lawful purposes

     

Find a Firearm Rights Attorney in Brevard County

Have you been arrested for a weapons charge in Brevard County, Florida? Choosing your Florida criminal defense attorney is critical to protect your rights and get the best legal representation. Talk to the Legal Eagles Criminal Defense Team in Brevard County to learn more about your rights and explore your legal options.

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