Florida AG: Open carry is now ‘law of the state’

Sheriff Bob Gualtieri said Friday that openly carrying firearms was not yet legal in Florida. He also questioned whether the First District Court of Appeal’s recent ruling applied to Pinellas County. 

Gualtieri’s extensive statement is now at odds with new guidance from Attorney General James Uthmeier, who announced Monday that “as of last week, open carry is the law of the state.” His memo to law enforcement agencies and prosecutors said the court’s decision is binding statewide. 

“There is a previous decision by the Florida Supreme Court holding the statute prohibiting open carry of guns is constitutional,” Gualtieri wrote Friday. “As a matter of well-established law, a lower court, especially one in another district, cannot overrule law established by the Florida Supreme Court. 

“We must consider whether the Supreme Court’s prior decision is the law in Pinellas County.” 

A Pinellas County Sheriff’s Office spokesperson responded to an interview request Monday with a link to Gualtieri’s previous statement. 

The First District Court of Appeal (DCA), when deciding McDaniels v. State, ruled Sept. 10 that prohibiting openly carrying firearms was unconstitutional. Gualtieri, an attorney, wrote Sept. 12 that the decision is not effective for 15 days. 

He said that “nobody should now open carry” in Pinellas. However, Uthmeier subsequently said the ruling became law “last week.” 

A St. Petersburg Police Department spokesperson said Monday that Chief Anthony Holloway is “deferring speaking about this until the scope of the First DCA decision is determined and how to proceed on Sept. 25, the effective date.” 

Gualtieri previously noted that Pinellas is under the Florida Supreme Court and Second DCA’s jurisdiction. The state’s highest court upheld the open carry ban in 2017. 

However, in its order last week, the First DCA said a 2022 U.S. Supreme Court case takes precedence. What is now known as the Bruen decision states that laws restricting the Second Amendment right to keep and bear arms must align with historic gun regulation. 

“No historical tradition supports Florida’s open carry ban,” the nation’s highest court wrote in its opinion. “To the contrary, history confirms that the right to bear arms in public necessarily includes the right to do so openly.” 

Uthmeier agreed in his memo Monday. He noted that no other appellate court has considered the constitutionality of Florida’s open carry ban since the Bruen decision, which makes the First DCA’s ruling “binding on all” trial courts. 

“Because no Florida court will any longer be empowered to convict a defendant for violating Section 790.053(1), prudence counsels that prosecutors and law enforcement personnel should likewise refrain from arresting or prosecuting law-abiding citizens carrying a firearm in a manner that is visible to others,” Uthmeier wrote. 

“Similarly, consistent with this decision, my office moving forward will no longer defend convictions and prosecutions in cases like Mr. McDaniels’.” 

Uthmeier added that the First DCA’s ruling does not prevent officers from policing people who publicly flaunt their firearms in a “rude, careless, angry or threatening manner.” The decision does not negate the state’s authority to prohibit felons from possessing guns or ammunition. 

Gualtieri previously wrote that he would work with Uthmeier and other state leaders to determine the scope of the First DCA’s decision, and “how to proceed come Sept. 25.” The sheriff’s office will publish public guidance on how it plans to enforce or not enforce Section 790.053 before that date. 

“Our job as law enforcement is to follow the law and not make the law,” Gualtieri said. “However, we have to know ‘what’ the law is and where it is applicable before we can decide ‘what’ and ‘how’ we enforce the law.” 

While Gov. Ron DeSantis has pushed to allow open carry and loosen other gun regulations, the state’s Republican supermajority Legislature has resisted his overtures. A group of Second Amendment advocacy organizations issued a joint letter Monday warning that any attempts to mitigate the recent ruling would be “vigorously and strongly opposed by a unified front of Florida gun owners.” 

The organizations, including the National Rifle Association (NRA), Florida Carry, Gun Owners of America and Florida Gun Rights, wrote that “some are now pushing for new regulations to limit the impact of this hard-fought victory.” 

Florida previously allowed people to openly carry a firearm if they were traveling to or from fishing, hunting, camping and target practice. Public spaces, including streets, parks and beaches, are no longer off-limits. 

However, the state still prohibits people from carrying guns, whether openly or concealed, in schools and government buildings. Uthmeier noted private property owners still “maintain the long-standing legal prerogative to compel individuals carrying firearms to leave their premises.” 

“Any person carrying a firearm who violates the private property owner’s warning to depart will be committing armed trespass, a third-degree felony,” he said.

Update: Gualtieri released an updated statement Tuesday following Uthmeier’s memo. Gualtieri called it “well-reasoned guidance that considers the impact of prior Florida Supreme Court and other appellate court decisions.”

“We will follow the attorney general’s guidance and adhere to the court’s decision … and F.S. 790.053 will not be enforced by the Pinellas County Sheriff’s Office,” Gualtieri wrote. “Nonetheless, we remind the public that as stated by the court in its decision, the decision is not final (effective) until Sept. 26, 2025, and everyone should respect that effective date.”