Norman v. State

Decision Date02 March 2017
Docket NumberNo. SC15–650,SC15–650
Citation215 So.3d 18
Parties Dale Lee NORMAN, Petitioner, v. STATE of Florida, Respondent.
CourtFlorida Supreme Court

Eric J. Friday of Fletcher & Phillips, Jacksonville, Florida, for Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Consiglia Terenzio, Bureau Chief, and Heidi Lynn Bettendorf, Assistant Attorney General, West Palm Beach, Florida, for Respondent

Glenn Thomas Burhans, Jr. of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Tallahassee, Florida; and Deepak Gupta and Jonathan E. Taylor of Gupta Wessler PLLC, Washington, District of Columbia, for Amicus Curiae Everytown for Gun Safety

Jason Brent Gonzalez of Shutts & Bowen LLP, Tallahassee, Florida; and Robert Dowlut, Bethesda, Maryland, for Amicus Curiae National Rifle Association of America


In this case, we determine the constitutionality of section 790.053, Florida Statutes (2012) ("Florida's Open Carry Law"), first passed by the Legislature in 1987 and challenged by Norman as a violation of his right to bear arms for self-defense outside the home under both the United States and Florida Constitutions. The Fourth District Court of Appeal concluded that Florida's Open Carry Law does not violate the Second Amendment to the United States Constitution or article I, section 8, of the Florida Constitution. Norman v. State , 159 So.3d 205 (Fla. 4th DCA 2015). We accepted jurisdiction on the basis that the Fourth District expressly construed the United States and Florida Constitutions and expressly declared valid a state statute. See art. V, § 3(b)(3), Fla. Const.

Florida's Open Carry Law is a provision within Florida's overall scheme regulating the use of firearms (codified in chapter 790, Florida Statutes), but still allowing the possession of firearms in most instances. See § 790.06, Fla. Stat. (2012). Chapter 790 permits individuals to carry firearms in public, so long as the firearm is carried in a concealed manner. Pursuant to section 790.06, Florida employs a "shall issue" scheme for issuing licenses to carry concealed firearms in public. See id. Under this licensing scheme, which leaves no discretion to the licensing authority, the licensing authority must issue an applicant a concealed carry license, provided the applicant meets objective, statutory criteria. Id. Accordingly, as the Fourth District observed in explaining the breadth of Florida's "shall issue" licensing scheme, the right of Floridians to bear arms for self-defense outside of the home is not illusory:

Florida's licensing statute does not effectively act as an exclusionary bar to the right to bear arms in lawful self-defense outside the home.... [In] over two decades from 1987 to 2014, Florida issued concealed weapons permits to more than 2.7 million people. As of December 2014 there were 1,535,030 active permits issued in a population of over 19 million. No empirical evidence suggests in any way that Florida concealed carry permits are unduly restricted to only a few people, such that a citizen's right to lawfully carry a firearm is illusory.

Norman , 159 So.3d at 219 (footnotes omitted).1 Further, pursuant to chapter 790, Florida law provides sixteen exceptions to Florida's Open Carry Law, including a broad exception that applies to persons "engaged in fishing, camping, or lawful hunting or going to or returning from a fishing, camping, or lawful hunting expedition." § 790.25(3)(h), Fla. Stat. (2012) (emphasis added); see also § 790.25(3), Fla. Stat. (2012) (providing a list of sixteen statutory exceptions to the Open Carry Law). Because of the comprehensive nature of Florida's regulatory scheme of firearms, we review the constitutionality of Florida's Open Carry Law within the context of chapter 790.

As we explain more fully below, we agree with the Fourth District that the State has an important interest in regulating firearms as a matter of public safety, and that Florida's Open Carry Law is substantially related to this interest. Norman , 159 So.3d at 222–23. We conclude that Florida's Open Carry Law violates neither the Second Amendment to the United States Constitution, nor article I, section 8, of the Florida Constitution.2 Accordingly, we affirm the Fourth District's well-reasoned opinion upholding Florida's Open Carry Law under intermediate scrutiny. See id. at 209.


On February 19, 2012, Dale Lee Norman received by mail a license issued by the Florida Department of Agriculture and Consumer Services authorizing Norman to carry his firearm in public in a concealed manner. He left his Fort Pierce home on foot with a .38 caliber handgun and his new concealed-carry license. A few minutes after he left his home, a bystander observed Norman walking alongside U.S. Highway 1 with his handgun holstered on his hip and not covered by any article of clothing. The bystander alerted the Fort Pierce Police Department, which dispatched officers. Fort Pierce Police Department officers arrived on the scene approximately five minutes later and also "saw [Norman] carrying a firearm in ‘plain view’ in a holster on his hip. The firearm was on the outside of [Norman's] tight fitting tank top." Norman , 159 So.3d at 227. A dashboard camera from a responding officer's patrol car that captured Norman's arrest on video "showed that [Norman's] gun was completely exposed to public view, in its holster, and not covered by [his] shirt." Id. at 209.

Norman was charged with Open Carrying of a Weapon (firearm) in violation of section 790.053, Florida Statutes (2012), a second-degree misdemeanor carrying a maximum penalty of a $500 fine and a term of imprisonment not exceeding 60 days. See id. ; see also §§ 775.082, 775.083, Fla. Stat (2012). Prior to trial in the County Court of St. Lucie County, Norman filed five motions to dismiss and challenged the constitutionality of section 790.053 on various grounds. See Norman , 159 So.3d at 209. The county court reserved ruling on Norman's motions to dismiss until after the jury trial.

After the jury found Norman guilty of the sole count of openly carrying a firearm in violation of section 790.053, the county court denied Norman's motions to dismiss, but certified the following three questions of great public importance to the Fourth District:3

I. Is Florida's statutory scheme related to the open carry of firearms constitutional?
II. Do the exceptions to the prohibition against open carry constitute affirmative defenses to a prosecution for a charge of open carry, or does the State need to prove beyond a reasonable doubt that a particular defendant is not conducting himself or herself in the manner allowed[, meaning that they are elements of the crime]?
III. Does the recent "brief and open display" exception unconstitutionally infect the open carry law by its vagueness?

Id. Thereafter, the county court withheld adjudication and imposed a $300 fine, along with court costs.

In answering the certified questions, the Fourth District concluded that it need not "address whether the ‘brief and open display’ exception unconstitutionally infects the open carry law by its vagueness because under the facts of the case this exception did not apply to [Norman.]" Id. at 209–10. Norman does not challenge this conclusion before this Court. In analyzing the two other certified questions, which Norman does challenge, the Fourth District affirmed the trial court's rulings "by holding that section 790.053, which generally prohibits the open carrying of firearms, is constitutional," and that "exceptions to the prohibition against open carry constitute affirmative defenses to a prosecution for a charge of open carry." Id. at 209.

Addressing the constitutionality of section 790.053, the Fourth District applied "a two-step analysis" that has "been employed by the majority of the federal circuit courts to consider Second Amendment challenges since the Supreme Court's decision in [District of Columbia v. ]Heller , [554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) ]." Norman , 159 So.3d at 210 & n.2. This two-step analysis requires first determining "whether the challenged law burdens conduct protected by the Second Amendment based on a historical understanding of the scope of the [Second Amendment] right, or whether the challenged law falls within a well-defined and narrowly limited category of prohibitions that have been historically unprotected." Id. at 210 (quoting Jackson v. City & Cty. of San Francisco , 746 F.3d 953, 960 (9th Cir. 2014) ) (alteration in original). The second step determines the appropriate level of scrutiny to apply to the challenged law if the law burdens conduct falling under the scope of the Second Amendment right. Id. at 210–11.

The Fourth District concluded that under the first prong of its analysis, section 790.053 burdens the right, but "does not improperly infringe on Florida's constitutional guarantee, nor does it infringe on ‘the central component of the Second Amendment—the right of self-defense" because a citizen may still carry a firearm under the concealed carry licensing scheme. Id. at 219 (quoting Heller , 554 U.S. at 599, 128 S.Ct. 2783 ). The Fourth District then interpreted Heller to establish "that Second Amendment challenges are no longer susceptible to a rational-basis review." Id. at 220 (citing Heller , 554 U.S. at 628 n.27, 128 S.Ct. 2783 ). After reviewing various federal circuit court decisions that have considered challenges to laws impacting the Second Amendment right, the Fourth District concluded that "intermediate scrutiny is the proper standard to apply to section 790.053." Id. at 222.

In applying the intermediate scrutiny test, the Fourth District concluded that the State's interest of public safety was "compelling." Id. As to the second prong, whether a reasonable fit existed between the challenged law and the State's asserted objectives, the Fourth District noted the difficulty of obtaining empirical proof of regulation efficacy, but nonetheless concluded...

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