Florida Court to Cops: Bearing Arms Isn’t “Reasonable Suspicion”
As many concealed carriers have discovered to their disappointment (or worse), sometimes the last people to find out how the gun laws in their state are meant to be enforced are the police charged with enforcing those gun laws. Recently, a Florida appellate court spelled it out on behalf of their state’s armed citizens, stating that a brief glimpse of a civilian’s gun isn’t enough to arrest that citizen. This is particularly interesting for everyone currently monitoring the war over open carry, with its own unique Sunshine State twist. According to this article from NRA-ILA:
The background of the ruling was a stop and arrest made by Deputy Beach of the Escambia County, Florida Sheriff’s Office. He testified that while he was at a motel parking lot at 8:30 in the morning, he noticed a truck with a translucent cover over the license plate. A man was sitting in the driver’s seat and the officer approached him to “discuss” the license plate cover. The man – Stanley Kilburn – got out of the truck holding a knife, but when he saw the officer he placed the knife inside the truck and raised his hands. Once Kilburn raised his hands, Deputy Beach was able to see the butt of a handgun sticking out of his waistband, and immediately detained and searched him. Deputy Beach did not testify as to how long the gun was visible other than to say that it “was concealed, but not really concealed.”
What’s interesting about this is that Florida is one of the 10 states nationwide that does not permit open carry–meaning that no one, not even the people with concealed-carry permits, is allowed to display their gun in full public view. (Of course, concealed carry with a permit is legal and has been for decades.) In places where OC is forbidden but CCW is legal, the accidental display of a concealed firearm–say while adjusting a cover garment or reaching up high–is usually given a bit of a “free pass,” and Florida is no exception. When Kilburn raised his hands and briefly exposed the butt of his pistol, that should have been acceptable per Florida law. Back to the article:
It was not until after Kilburn was handcuffed, secured in the police vehicle and given a Miranda warning that Deputy Beach questioned Kilburn and asked whether he had a concealed-weapons license. He did not, and was charged with unlicensed carrying of a concealed weapon…Deputy Beach specifically testified at the trial court hearing that he did not have reasonable suspicion of any criminal activity by Kilburn (past, present or impending); the sole cause of the detention and arrest was the partially visible firearm.
Now, clearly, Kilburn’s no angel here: He was in fact carrying that firearm illegally. However, at the point that the officer made the arrest, the officer had not yet determined whether or not Kilburn had a CCW permit, so at that time the only piece of information he had that caused him to make the arrest was that he had seen that flash of a gun butt. Here’s where we get to the interesting part about the Florida appellate court ruling:
A critical factor in the court’s decision, though, was the huge number of persons licensed to carry concealed firearms in the state. Unlike the trial court’s speculations, the appellate court determined that as of January 2020, over two million residents were licensed to carry concealed weapons, representing over 13% of Floridians over 21 years old. Even so, this number did not include those entitled to carry without a license, such as law enforcement officers, and those carrying under a different license (private investigators and security guards). As emphasized by the court, these numbers meant that “approximately one out of every seven persons over the age of twenty-one may lawfully carry a concealed weapon in Florida. The thought that these millions of people are subject to seizure by law enforcement until their licenses are verified is antithetical to our Fourth Amendment jurisprudence…No court would allow law enforcement to stop any motorist in order to check for a valid driver’s license.”
So, what we have here is the Florida courts telling law enforcement, “Gun ownership and lawful concealed carry is so popular here that simply seeing a gun with no other evidence of criminal activity is not enough for an arrest.” This ruling is excellent news for Second Amendment supporters in Florida (and elsewhere), and has made us all that much safer.
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If it is not in a holster you MIGHT be on to something. Years ago in Philly when a carry permit required hoops, flips, somersaults I had Philly cops tell if they caught a glimpse of a gun in a holster they figured good guy. No holster, stop ’em.
We actually have some real courts in the country with real judges. Job well done.
It seems to me that had the officer merely asked Kilburn, “I see that you are carrying a firearm. Do you have a CCW permit?” then the arrest would have been righteous. The probable cause to make the original stop would be the license plate cover; the question about the CCW permit would have been covered by the principle of open display, even if the officer only had a fleeting glance.
No it would not make the arrest legal or “righteous” for the simple fact of Mr. Kilburn’s right of self incrimination! Without the officer first reading Mr. Kilburn’s Miranda’s Warnings any answer provided by Mr. Kilburn would have been tossed out by the courts and any arrest following Mr. Kilburn’s statement would be found illegal and subject to the poisons tree and therefore undoubtedly tossed out.
The probable cause for hassling the guy in the first place I was the translucent license plate cover. These are illegal in some states. I don’t know about Florida. While I applaud the ruling, and am glad that I live in NC where open carry is legal, was the hassle legit in the first place or not? Corollary lesson whether you are a legal concealed carrier, open carrier where legal, or jerk like this guy. if license plate covers are not legal, don’t make yourself a target. Don’t put a decal with a picture of an AR, or Armed by Smith and Wesson, or whatever else on your vehicle. You may be exercising your 1st Amendment rights, but are also making yourself a target to over zealous or politically motivated cops in a situation where it is difficult to defend yourself.