Bearing arms for legitimate self-defense is a Constitutional right. But like so many other things, the devil is in the details. The government is allowed to impose reasonable restrictions on that right in order to carry out law enforcement functions and in support of the general welfare, but sometimes those restrictions violate our Constitutional rights and must be challenged in court.
One of the most common places where our Constitutional rights are in tension with the government’s desire to promote law and order is when it comes to carrying firearms out in society. Florida, like most states, has adopted a set of rules allowing concealed carry of firearms by people who obtain a permit to do so. But we don’t need a concealed carry permit to possess a firearm in our own homes for self defense – courts have found this to be a basic Constitutional right. It is an outgrowth of a legal principle called the Castle Doctrine that is basically as old as time. And your vehicle is considered an extension of your home. Does that mean you can possess a gun in your vehicle without a concealed carry permit? Yes you can, in certain places and configurations (as long as you’re lawfully allowed to possess firearms and there’s nothing inherently illegal about the firearm itself). But whether you’re on the right or wrong side of the law here depends on the placement and configuration of the firearm and its ammunition. This article’s purpose is to discuss how to be on the right side of the law. The cost of being wrong is that you could be subject to a felony arrest.
Florida Statutes section 790.25(5) states that it is lawful for an adult “to possess a concealed firearm or other weapon for self-defense or other lawful purpose within the interior of a private conveyance, without a license, if the firearm or other weapon is securely encased or is otherwise not readily accessible for immediate use.”
The first thing to note here is that if you’re a concealed carry permit holder (a “license,” as this provision refers to it), you don’t have to worry about any of this. If you’re not a permit holder, you can still be within the law depending on the answer to two more questions:
Was the Firearm “Securely Encased?”
Florida statutes chapter 790 defines “securely encased” as “in a glove compartment, whether or not locked; snapped in a holster; in a gun case, whether or not locked; in a zippered gun case; or in a closed box or container which requires a lid or cover to be opened for access.” So, the legislature has given us a list of safe places where we can store a firearm and hope to be within the law.
In court, firearms have been ruled to have been securely encased when they were enclosed inside zippered duffle bags located behind the driver’s seat of a vehicle; when the weapon was hanging from the dashboard in a plastic pouch with a flap laid over it; when contained in a closed box which required a lid or cover to be opened for access; when under the front seat of a vehicle in a holster with leather strap snapped over the hammer; and when found in the center console of a vehicle, with the lid of the console being closed, and where the gun was underneath papers and other objects in the console.
When has it been ruled that a gun was not securely encased? In one case, it was not good enough when the gun could be retrieved from the console between the front seats of the automobile by simply opening the lid of console. In another case, it was also held that a gun placed in an unlocked receptacle which is a part of the automobile was not “securely encased” within the meaning of the exemption. It seems like there are cases on both sides of the issue as to whether putting your weapon in your center console will protect you from arrest or prosecution. The best advice would seem to be this: don’t leave it in law enforcement’s hands – get a permit.
Even if you don’t have a permit, and even if your weapon is not “securely encased” in one of the ways mentioned in the definition of that term, you can still be within the law if the weapon is not “readily accessible for immediate use.”
Was the Firearm “Readily Accessible for Immediate Use?”
“Readily accessible for immediate use” means that a firearm or other weapon is carried on the person or within such close proximity and in such a manner that it can be retrieved and used as easily and quickly as if carried on the person.
It was ruled that the firearm was readily accessible for immediate use when a firearm was concealed under the passenger’s seat, whose bullets and clips were lying separately in open view on the passenger’s seat; and also in another case when a firearm was in its holster, in an upright position with the barrel facing forward, leaning up against the frame of the driver’s seat where the leather strap was not snapped across the hammer but was rather behind the cylinder, and where it was in position where the driver could easily have withdrawn it quickly from the holster by the butt without even unsnapping it.
On the other hand, it was determined that the firearm was not readily accessible for immediate use in cases where the firearm was concealed under the passenger seat, and its clip and bullets were lying separately in open view upon the seat; where the firearm was unloaded, and the ammunition was located in the glove box of the automobile; where the firearm was unloaded and the ammunition for the firearm was inside the closed center console of vehicle; when the firearm was unloaded and on the floorboard area of right front passenger’s seat; and in another case where a rifle and a shotgun were partially enclosed in a professionally made gun case attached to back of a truck’s seat cover (behind the driver).
If you haven’t already gathered this, the determination of whether a firearm was “securely encased” or was “readily accessible for immediate use” is an extremely fact-specific decision. You probably noticed that very similar facts gave rise to seemingly inconsistent court decisions in both the areas described above. It has been observed that a court’s role in this scenario is to consider the location and accessibility of both the firearm and the ammunition in order to make a decision about the accessibility of the firearm. But why put yourself in law enforcement’s hands? Why put yourself at higher risk of getting arrested and then leave it in a judge’s (or a jury’s) hands? The safest approach appears to be to get a permit.
As always, these articles are meant to further the discussion about the intersection of the law and our lives: don’t interpret it as legal advice and don’t rely on it to govern your conduct in the world. But the more informed you are about your rights, the better. Stay safe out there!