|October 22, 2015
|USF & NRA Members and Friends
|Marion P. Hammer
|USF Executive Director
|NRA Past President
Yesterday, the Florida Sheriffs Association (FSA) came out against the open carry bill, SB-300 by Sen. Don Gaetz and HB-163 by Rep. Matt Gaetz. It is a bill to stop concealed weapons and firearms license holders from being arrested for violating the open carry law if their firearms become accidentally and unintentionally exposed to the sight of another person.
Sheriff Bob Gaultieri, the FSA Legislative Chairman, announced the organization's opposition to the bill in an inflammatory interview with the Palm Beach Post -- without having the courtesy of informing the bill sponsors of their opposition. Sen. Gaetz told me he learned of their opposition when he read it in the news.
It is important to remember that this is a reversal of their position from when we passed the Right to Carry law in 1987. At the time they opposed the concealed weapons licensing law. They claimed they didn't like "hidden guns." They said if they had to allow citizens to carry guns, they wanted to be able see them so they would know who had guns. Now, they say hidden guns are okay, but if they see a person openly carrying a gun they won't know if that person is a criminal.
Below is an article just posted on the Sarasota Herald-Tribune website that exposes the misinformation Sheriff Gaultieri gave in his Palm Beach Post interview (the article also contains a link to that interview). You should read both.
Pinellas Sheriff fights open-carry bill with bad info
Posted on October 22, 2015 by Lee Williams
In a Q&A style interview published Wednesday on the Palm Beach Post’s opinion blog, Pinellas County Sheriff Bob Gualtieri, who chairs the Florida Sheriff’s Association’s legislative committee, spelled out his opposition to SB 300, the “Open Carry” bill, which is moving forward in the legislature.
I interviewed him for this story, and we spoke about his comments in the Post’s Q&A interview.
The sheriff bristled somewhat when I asked if he was a Second Amendment supporter.
“I really don’t like that statement,” he said. “The Constitution is the Constitution, and I support every amendment, but every amendment is not without limit.”
You’ll remember Sheriff Gualtieri. He’s not known for his support of guns, gun owners or pro-gun legislation.
In May of 2013, he vowed to start enforcing a little-used county ordinance that requires background checks at local gun shows for all private sales. The county ordinance gathered dust since it was enacted in 1998. Violators faced misdemeanor charges. After garnering a few headlines, the plan fizzled. Gun shows were held without any problems. No arrests were ever made.
A year later he called the Firearms Mandatory Evacuation bill — which is now law — “crazy” and “absurd,” saying it would allow people to carry concealed firearms into a riot, rather than when they’re fleeing their homes.
In his interview with the Post, some of Sheriff Gualtieri’s responses are confusing. Others are downright wrong.
I wasn’t the only one who noticed.
“I am saddened to see so much misunderstanding and erroneous information about a bill that simply protects the rights of law-abiding concealed weapons and firearms license holders,” said Marion Hammer. “The apparent distrust of law-abiding firearms owners by their sheriffs is indeed very sad and disappointing.”
Hammer is the executive director of the Unified Sportsmen of Florida, a past-president of the National Rifle Association and an NRA board member.
Sheriff Gualtieri starts by claiming 82 percent of the sheriffs oppose open carry. They took a secret vote, he said, during which 47 of the 67 sheriffs voted to oppose the bill. While my dad taught math for 33 years, I’m no mathematician, but that seemed more like 70 percent than 82 percent. It causes one to wonder why they have to skew the numbers.
The sheriff told me there were 5 sheriffs who abstained and 5 who could not be contacted, so 57 voted.
I’ll give him the 5 who didn’t answer their phones, but an abstention is still a vote.
This drops his 82 percent down to 75 percent. That much is clear.
Same restrictions as concealed carry
Sheriff Gualtieri told the Post that SB-300 it too broad and has no limits, but that’s not the case. The bill is not broad. It does have limits. It has the same limits that apply to concealed carry, and to clarify that those restriction apply, an amendment was added Tuesday to the bill in Senate Criminal Justice Committee.
The sheriff didn’t agree that the same restrictions would apply.
“That’s arguable,” he told me. “It also says the courts, in interpreting any statute not just this one, are to apply strict scrutiny. It calls into question whether any existing statute, under the strict scrutiny analysis, would survive. All have been analyzed under the intermediate scrutiny analysis. I don’t know if any (restrictions) would survive if the bill would become law.”
I’m no attorney, but this argument stinks, and it’s not Hoppes #9 I’m smelling.
The Post story included a picture of three men queued up in a fast-food restaurant. One had an M4 slung over his back. But SB-3oo only applies to handguns. It specifies that no long guns, rifles or shotguns, may be carried concealed or openly except as provided in 790.25 (hunting, fishing, camping, etc.)
“I didn’t choose the photos,” the sheriff said. “It (the bill) is purely about handguns. I never mentioned rifles.”
Good point, sheriff.
Produce license upon request
The sheriff said the bill “raises questions” about a police officer’s ability to ask an open-carrier to produce their concealed-carry license.
But under existing law, 790.06(1), license holders are required to have the license with them “at all times in which the licensee is in actual possession of a concealed weapon or firearm and must display both the license and proper identification upon demand by a law enforcement officer.”
That same restriction apply to open carry. It’s in the bill.
Gualtieri admitted same.
“That’s true, assuming that all that survives,” he acknowledged.
Private property rights
In the Post story, Gualtieri claimed that a Day Care or a McDonald’s won’t be able to bar people from open carry or “having their guns on tables” while eating.
This too is false.
There is nothing in the bill that in any way impacts the private property rights of others. Any businesses or person may prohibit the open carry of firearms on their private property.
The sheriff does not see it this way.
“No. It says right now they can carry a firearm openly anywhere they’re lawfully allowed to be,” he told me. “Certainly, the best way to protect private property rights is to remove any ambiguous language, soit clearly says private property owners can do that.”
One of the main reasons the bill has garnered so much support is that it will stop the overzealous arrests and prosecutions of concealed carriers whose clothing rides up and they unintentionally display a handgun.
The sheriff said these law-abiding citizens shouldn’t be “dinged” for a simple mistake, but that certainly has happened. Arrests have been made. We tried it the Sheriffs’ way in 2011 — in good faith. Instead of going to simple open carry, we agreed to an amendment by the sheriffs that was supposed to stop abuse of people who were carrying concealed.
It didn’t work.
Licensed concealed carriers were still arrested for violation of the open carry law if their firearm accidentally and unintentionally became exposed to the sight of another person. Their amendment said it was not a violation of the open carry law for a gun being carried concealed to be briefly exposed to the sight of another person. That amendment didn’t work, and the abuse only got worse.
The sheriff told me that no “good people” should be prosecuted for a mistake. Unfortunately, they still are.
The law in 45 states
The Post asked Gaultieri why 45 states allow open carry.
In his response, he said it’s not an “apples to apples” or an “accurate” comparison, because Florida has a strong preemption law.
For the life of me, I couldn’t figure out what he meant by that, so I asked.
“The proponents and sponsors are trying to use the statement persuasively that Florida is the only one of five states that don’t have open carry — trying to say that 45 have laws similar to Florida that would allow straight open carry — that there are no issues in other places, so there will be no issues here — that if it’s good in 45 states, is should be good here,” he said. “Take Pennsylvania — their statute is very, very narrow. Oklahoma requires a holster. You can’t stick a .45 in your pocket. Texas (open carry) law doesn’t take effect until 2016. To sit there and say this has worked out in other places so it would work here is wrong. There’s a whole myriad of laws in other states. They’re not examples. There’s a big difference between the Poconos and downtown Miami.”
I told the sheriff that of course different states had different provisions and that the 45-state analogy should be taken on the whole, but he didn’t agree.
“Show me a major metro area where you don’t have to have a handgun in a holster, or where there’s no (mandatory) weapons retention training,” he said.
Sheriff Gaultieri told me he “absolutely” supports the right to carry a concealed firearm, but he refuses to support open carry.
“What I am against is the unnecessary and unreasonable display of firearms,” he said. “There’s no right here being infringed on. Everyone has a right to carry a firearm concealed.”
I told him most folks view open carry as the “bearing arms” part of the Second Amendment, but the sheriff doesn’t agree.
“No. the Florida Constitution states that we can have reasonable gun restrictions, and the Federal Constitution — people read too much into it,” he said. “The Fourth Amendment says people should be free of unreasonable search and seizure. It doesn’t say all search and seizure. I don’t think it’s good to be sitting in the public cereal aisle, and to see some guy with two .45s stuck in his bathing suit. If they want to carry concealed, they need to be discreet about it.”
I want to thank the sheriff for taking the time to talk to me, even though I’m one of those who, in his view, is certainly guilty of reading too much into the Second Amendment.