Open-Carry Leaves Flagler County’s Government Attorneys Grappling with Ruling’s Application to Public Spaces

Last Updated: 4:23 p.m.

Five days after a Florida appeals court ruled unconstitutional a state law prohibiting the carrying of guns unconcealed in public, a Palm Coast city employee walking into the Southern Recreation Center saw a man in the dog park with his dog, and with a sidearm in a holster, clearly visible. 

“In case we get questions, Does the new Florida open carry law [a]ffect the current no weapons allowed in any parks and recreation facility policy?” the employee asked a supervisor. 

The supervisor got an answer from John LeMaster, the Flagler County Sheriff’s general counsel. “In general, a private land owner (including the city) may prevent open carry on their property in this case a city park,” LeMaster wrote the supervisor in an email. The violator could be trespassed.  “However, this has larger ramifications and I am not prepared to opine on what ifs today.” 

And i fact when City Attorney Marcus Duffy checked on the law further as it applies to the city, it turned out the man with the dog was in his rights to carry a gun, as long as he was not intimidating anyone (contrary to an interpretation in an earlier version of this article). 

The employee’s question and the attorneys’ responses were a reflection of at least a measure of confusion or lack of clarity the Sept. 10 ruling restoring open-carry has created. LeMaster, along with Duffy and Assistant County Attorney Sean Moylan, have been fielding questions and exchanging emails to clarify the matter, though even they find themselves stumped by loopholes the new ruling appears to have opened in state law. They are looking to the legislature, which meets in January, to clarify the law. 

Meanwhile, questions continue to be raised about guns in public places, including Flagler County’s and Palm Coast’s public buildings and parks. 

A city spokesperson today at first confirmed that guns are prohibited in public parks then reversed course, and said they are prohibited at City Hall’s public meetings–but not necessarily in City Hall offices proper. The spokesperson said Duffy is not yet clear on the prohibition’s extension to the entirety of City Hall. Confusing as things are, the city intends to err on the side of permission, not prohibition. 

The state law spelling out the prohibition (and echoed in a city ordinance) was written to regulate concealed weapons. In its own wording, the law “does not authorize any person to openly carry a handgun, or carry a concealed weapon, or concealed firearm” in numerous public places that the law enumerates. 

The prohibition on open-carry has been nullified. Though the prohibition on handguns in certain public places continues to apply as it did for concealed weapons, the wording of the law does not necessarily make the prohibition as explicit regading rifles or long guns.

“Subpart (1)(a) specifically says concealed weapon does not include machine guns,” Moylan wrote LeMaster in a Sept. 16 email. (In the law’s words, “the term ‘concealed weapon or concealed firearm’ means a handgun, electric weapon or device, tear gas gun, knife, or billie, but does not include a machine gun.” 

On Tuesday, Rep. Christine Hunchofsky, the Parkland Democrat, introduced a bill aiming to close that loophole. (Parkland is the site of the 2017 massacre that left 17 people dead at Marjory Stoneman Douglas High School). LeMaster has been working through the Florida Police Attorneys Association on proposing a similar legislative clarifications.

Courts are in the clear. “Our Court believes that chief judges continue to have the authority to prohibit weapons (including firearms) in courthouses and courtrooms,” Chief Justice Carlos G. Muñiz wrote all chief judges in the state in a Sept. 25 memo. 

Shortly after the open-carry ruling, Palm Coast defense attorney Marc Dwyer said the reasoning of the ruling was correct, but he predicted that it would create unexpected situations that would have to be sorted out by law enforcement and in court. The confusion was widespread. 

The First District Court of Appeal in Tallahassee issued the ruling, known as Stanley v. Florida, on Sept. 10. 

On Sept. 15, Attorney General James Uthmeier issued a “guidance memorandum” stating that the decision was binding across the state, since no other appellate court has ruled on the matter. So cops and prosecutors should refrain from taking action against people openly carrying firearms, he wrote. But he noted among other caveats that the “decision neither considered nor implicated Florida’s law listing certain locations where the carrying of a firearm—open or concealed—may be unauthorized.” 

“The same holds true for private property owners,” Uthmeier wrote, “who 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.” 

On Sept. 18, the Flagler County Sheriff’s Office issued a “legal bulletin,” or directive, to its law enforcement officers summarizing the Attorney General’s guidance (and including the guidance for officers’ review). 

“The McDaniels decision is not as far reaching as some may think,” the memo, drafted by LeMaster, stated. “While the decision does permit open-carry in public, where and when a person may legally carry can be conditioned not only by government entities but also by private businesses and landholders.” A violation is to be treated as a “property-rights/trespass issue rather than a firearm law violation,” the directive states. 

Prohibitions on weapons–including ammunition, tasers, stun guns and other weapons outlined in state law–still applied in public places such as schools or school-sponsored events, courts, college and university campuses and several other places. 

Questions lingered. “We have traditionally relied on [state law] to prohibit firearms in the GSB,” Moylan wrote LeMaster, referring to the Government Services Building in Bunnell, which houses county offices and the school district’s administration. “Given how the law is trending, including notably the harsh penalties against public officials in F.S. 790.33(3), it may be wise to reaffirm with school officials the degree to which students utilize the GSB and the degree to which school events are held here.”

The section of law Moylan cited referred to penalties against public officials who violate gun-rights laws. The penalties apply to them as individuals. The law prohibits their government from paying for their defense. 

By September 16, Mylan had “confirmed with the superintendent that the GSB is regularly utilized by students for school purposes. As such, we’ll maintain the policy we’ve had in Place.” Nevertheless, he added: “I’m worried the Legislature won’t clear up the statutory ambiguities for a number of reasons.” 

That leaves local regulations and local officials, should they exercise explicit prohibitions on guns in public places, vulnerable to litigation.