Constructing Statutes

Sean Caranna brings up a very interesting issue in Florida, regarding concealed carry. Depending on how your state’s concealed carry statute is put together can depend on whether a police officer can lawfully stop, and sometimes arrest you, if he suspects you’re carrying a concealed firearm. Some states generally outlaw carrying of a concealed firearm, and make an exception for persons licensed to do so. Other states make it illegal to carry a concealed weapon without a license to do so. Pennsylvania’s Uniform Firearms Act is constructed the in the latter manner.

I remember speaking to a lawyer who told me the slight wording in language, even though it seems to be the same, could be used by the courts to determine whether or not suspicion that someone is carrying a firearm could be a pretext for a stop. In the former construction, where concealed carry is illegal except by exception, it could be read as allowing for a stop, because carrying a concealed is a crime, generally, so the officer is justified in the stop to ensure the person falls under the exception. In the latter construction it can’t be a pretext for a stop, because it’s only unlawful to carry without a license to do so, so an additional element is required to make a stop. An officer must not only have reasonable, articulable suspicion that the person is carrying a concealed firearm, but also reasonable, articulable suspicion that the person does not have a license to do so.

New Jersey guns laws are constructed entirely the same way Florida’s carry law is. Firearms in New Jersey are generally illegal. You can only own them under exceptions to the general law. While it’s difficult to see how that can be a proper means of regulating a fundamental constitutional right, it’s one reason New Jersey gets away with abuses that it’s difficult to get away with in other state. Hopefully Florida can change the wording of its statute to fix this.

12 thoughts on “Constructing Statutes”

  1. It is a shame when lawyers made a mockery out of a law, and read it in a way that was not intended. The problem is it will take another new law, as they tend not to amend current ones.

  2. Oregon’s is written in two parts: Part A says it’s unlawful to carry a concealed weapon. Part B gives a list of exceptions (i.e. uniformed law enforcement, uniformed armed security [which has its own permitting requirements], CHL [what they call CCW licences here], etc.). But because both are listed under the same statute, I suppose it falls under the latter of your descriptions.

    FL’s problem is that one statute says carrying a firearm is illegal. Period. Full stop. You get stopped, frisked, and arrested for doing so. The exception for licensees is in another statute entirely, and is an “affirmative defense.” Affirmative defenses are great in court, but it means you’re going to have to go to court to prove it; it shifts the burden of proof to the accused and not the state.

    To me, it’s a bit too much like self-defense laws in the UK. If you defend your self/family/property and someone dies, you will be arrested, have to post bond, and have to prove to the court it wasn’t murder. That’s just wrong on so many levels.

    KUDOS to Sean for keeping up with this, too.

    1. Not true:

      790.01 Carrying concealed weapons.—
      (1) Except as provided in subsection (4), a person who carries a concealed weapon or electric weapon or device on or about his or her person commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
      (2) A person who carries a concealed firearm on or about his or her person commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
      (3) This section does not apply to a person licensed to carry a concealed weapon or a concealed firearm pursuant to the provisions of s. 790.06.
      (4) It is not a violation of this section for a person to carry for purposes of lawful self-defense, in a concealed manner:
      (a) A self-defense chemical spray.
      (b) A nonlethal stun gun or dart-firing stun gun or other nonlethal electric weapon or device that is designed solely for defensive purposes.
      (5) This section does not preclude any prosecution for the use of an electric weapon or device, a dart-firing stun gun, or a self-defense chemical spray during the commission of any criminal offense under s. 790.07, s. 790.10, s. 790.23, or s. 790.235, or for any other criminal offense.

      1. Your comment made me reconsider, and in reading the FL statutes, you are correct. This in turn encouraged me to re-read the All Nine Yards posts. The actual problem (which I mis-interpreted), is in the court’s interpretation: because the exception is listed in a “separate subsection”, the crime is complete with the carrying of a concealed weapon (this is where the “period, full stop” should be) and the proof of a license is an affirmative defense. As in, you still committed the crime, but the license says you were justified in doing so.

        Actually, this also made me question my understanding of Oregon’s laws, so to be intellectually honest: Oregon’s are set forth in three separate statutes, but they read as a set. ORS 166.250 is a five-parter, describing the crime of “Unlawful possession of firearms”, giving a list of people and activities it doesn’t prohibit, stating it doesn’t apply to openly-carried firearms (although it specifies “in belt holsters”), describing carrying in vehicles, and defining the class of the crime (class A misdemeanor). ORS 166.260 says that 166.250 does not apply to certain people (law enforcement [including private citizens summoned to assist LEOs in making arrests or preserving the peace], active military, CHL holders, etc.) AND provides the “affirmative defense” clause. ORS 166.262 says a LEO may not arrest someone carrying a concealed firearm if they have their CHL in their immediate possession.

        Reading them in order, it goes: “A crime is committed.” to “No, it’s not.” and “I can prove it right here.” No court appointments necessary.

        In the name of intellectual honesty, thank you for making me re-read those. :)

  3. Yeah, Virginia’s CCW law, while pretty good*, has as one glaring flaw the fact that, instead of even making concealed carry with a permit (CHP) the statute instead specifically states a CHP is an affirmative defense (last sentence of the first paragraph).

    If a cop doesn’t like you, for whatever reason, he can still charge you and force you to go to court and defend yourself. You don’t even get to sue (unless you want to waste your time and money), since he’s technically** in the right. The judge might tear him a new one for wasting the Court’s time on a case he knows he can’t win, but that’s probably the worst he can expect.

    The worst part is that this looks like a case of unintended consequences. That sentence was added just this year, in order to provide a defense for someone who – for whatever reason – was carrying but didn’t have their permit with them. The problem is that nowhere else in the statute (that I can find) does it say that a permit grants an exception to the prohibition on carrying concealed, or that CCW without a permit is a crime. It simply says that CCW is a crime, that you can get this thing called a “permit to carry a concealed handgun”, and that having been issued that permit is an affirmative defense to the crime of CCW. Before, the existence of a CHP implied that having one allowed a person to CCW legally, and whether it was an exception or a requirement wasn’t really clear. Now, it’s not even an exception, just an affirmative defense.

    * As such things go, at least. Constitutional carry should be the standard, but…

    ** Based on current jurisprudence (AFAIK), not the Constitution.

  4. Looks like we’re good here in WA

    (1)(a) Except in the person’s place of abode or fixed place of business, a person shall not carry a pistol concealed on his or her person without a license to carry a concealed pistol.

  5. Very interesting description, good to know. Makes constitutional-carry even more desirable.

  6. NJ law explicitly stated that if you cannot produce the necessary paperwork for possession you must be presumed to not have it. While this is of academic interest for most cases of possession of handgun, a FID allows possession of an unloaded longarm anywhere but the ground of an educational institution. Consequently, if I am only in possession of a rifle, I make sure to carry my FID so as to not have to mess around with the exceptions to the general ban.

    1. Also NJ law considers a bb gun a “firearm”, so legally you are in just as much trouble if you are carrying a marksman spring powered bb pistol as a 44 Mag revolver. You also need a FID to buy your kid a red Ryder bb gun for Christmas. Just plain crazy. Also as of 1990 (When I escaped the state of NJ) you had to have a separate permit to purchase a handgun for each handgun. And I believe you had to keep that permit with the handgun for life. Could be wrong there as I never bought a handgun in NJ. But heard about the BS involved from friends. (OK, never ‘legally’ bought a handgun anyways)

      1. Permit to purchase a handgun in’m is just that, a permit to purchase…Not a permit to possess, that’s an entirely different piece of paper. If you are inside one of the limited exceptions for legally possessing a firearm, you require no paperwork at all. Pricing you are within one of the exceptions is an affirmative defense requirement, see the sad story of Brian Aitken. The odd thing is, he got off on the two major charges, one on a very weird technicality (that the standard capacity magazine he possessed was not demonstrated in court to feed ammo in the firearm and the police officer who testified that it was a standard capacity magazine was not qualified as an expert witness to testify to same.)

        I am going to disagree with Sebastian as to one point, though. If you have the necessary paperwork, that permits you to possess, it’s not an affirmative defense, but permission. “No person shall possess … without having first obtained…” combined with the explicit statement of presumption I noted above would seem to negate the “affirmative defense” requirement. OTOH, the NJ courts “could not believe” that the legislature intended that a permit be issued without a background check when the law says: unless the CLEO has reason to believe otherwise, the permit must be issued within thirty days… Thus, the 30-day timer is invalidated by willful misreading; so I wouldn’t put it past them to rule that a permit is an affirmative defense if/when NJ is forced shall-issue.
        (The one silver lining about NJ’s repressive permitting regime is that there is no restrictions in law on where you can carry, though it will be interesting to see what happens to the current ability of judges to limit the conditions under which the possessor can carry a handgun. The logic of the Maryland case would tend to suggest that a constitutional right cannot be limited on a per person basis.)

Comments are closed.