Protecting Your Rights With a Florida Gun Charge Defense Attorney

Carrying a firearm in Florida is not as straightforward as many assume. Even though Florida has moved closer to permitless concealed carry, open carry remains highly restricted, creating confusion for gun owners and even for law enforcement officers. People often believe that constitutional carry means they can carry openly wherever they go, only to find themselves in handcuffs after an encounter with police.

As a criminal defense attorney, I have defended clients who thought they were within the law but were charged anyway. Understanding how Florida’s open carry laws actually work is critical. Even more important, if you are arrested, you need a defense lawyer who knows how to challenge the case and protect your record.

Florida’s Open Carry Statute Explained

The primary law governing open carry in Florida is Florida Statute § 790.053:

“Except as otherwise provided by law, it is unlawful for any person to openly carry on or about his or her person any firearm or electric weapon or device.”

This statute makes open carry illegal unless one of the exceptions applies. Those exceptions are narrow, such as:

  • Being engaged in, or going to and from, lawful hunting, fishing, or camping

  • Lawfully using firearms at a shooting range or gun show

  • Law enforcement or military duties

A violation is a second-degree misdemeanor, punishable by up to 60 days in jail, a $500 fine, and 6 months of probation.

Even though Florida adopted permitless concealed carry under § 790.01(1) in 2023, the Legislature did not repeal § 790.053. That means if your firearm is visible—even accidentally—you may face an open carry arrest.

Common Mistakes That Lead to Arrest

I have seen many clients arrested not because they were intentionally breaking the law, but because of simple mistakes:

  • Printing through clothing: When the outline of a gun is visible under clothing, some officers wrongly treat it as open carry.

  • Accidental exposure: A shirt rides up, or a jacket opens, briefly exposing the firearm.

  • Carrying on private property: People believe that carrying openly on their own land or at a friend’s home is always legal. Law enforcement sometimes disputes this.

  • Assuming “constitutional carry” applies to open carry: The most common error is believing Florida’s permitless carry law legalized open carry. It did not.

Each of these situations can trigger law enforcement action, even though strong defenses often exist.

Gray Areas That Cause Confusion

Florida’s open carry laws leave room for interpretation. For example:

  • Private property rights: Florida law does not clearly prohibit open carry on your own property, but if neighbors or bystanders call the police, officers may still make an arrest and leave the matter for the courts.

  • Going to and from hunting or fishing: The statute says open carry is lawful while going to or from these activities, but officers sometimes dispute whether a person was “directly” traveling or making unrelated stops.

  • Transporting firearms in vehicles: A firearm in a vehicle must be “securely encased” under § 790.25(5). If an officer sees a weapon not fully encased, you risk both a vehicle firearm violation and an open carry charge.

These gray areas show how quickly an innocent situation can spiral into criminal charges.

Why Police Officers Are Confused

Even many law enforcement officers misunderstand Florida’s open carry rules. Some assume that permitless concealed carry legalized open carry, others arrest people even when exceptions clearly apply. This confusion often leads to wrongful arrests.

While prosecutors sometimes drop these charges after reviewing the law, the arrest itself can leave a lasting mark unless aggressively challenged by an attorney.

Relevant Florida Statutes

Several Florida statutes interact with the open carry law:

  • § 790.01 – Carrying concealed weapons without a license

  • § 790.06 – Licensing law (still relevant for reciprocity with other states)

  • § 790.25 – Lawful ownership and possession, including exceptions for lawful activities

  • § 776.013 – Use of force in defense of self or property (Stand Your Ground)

An experienced lawyer will analyze these statutes to build your defense and show why the charge should be reduced or dismissed.

Possible Defenses to Open Carry Charges

I have successfully defended clients with several different strategies, including:

  • Statutory exceptions: Proving the client was engaged in hunting, fishing, camping, or traveling to and from those activities.

  • Accidental exposure defense: Courts have recognized that brief or accidental exposure is not the same as intentional open carry.

  • Unlawful stop or search: If the firearm was discovered after an unconstitutional stop, we can move to suppress the evidence.

  • Private property defense: Arguing that the law allows open carry on private premises not open to the public.

  • Lack of intent: Showing the State cannot prove beyond a reasonable doubt that the client “openly carried.”

Without a defense attorney, these arguments may never be properly presented. Prosecutors often rely on defendants pleading guilty without understanding their options.

Why You Need a Private Attorney

When you are arrested for open carry, the State may offer what seems like a quick deal, such as probation. But accepting it creates a permanent criminal record. That record can affect employment, professional licensing, and your Second Amendment rights.

A private defense lawyer examines every angle of the case, challenges unlawful police conduct, and presses for dismissal or reduction to a civil infraction. Public defenders are overloaded and cannot always provide this level of attention. Your freedom and your future are at stake, and having an attorney fight aggressively can mean the difference between walking away clean or living with a conviction.

Real Case Example

A client was arrested in Tampa after his firearm became visible while he was unloading groceries in his driveway. A neighbor called the police, claiming he was “waving a gun.” The reality was that his shirt had risen while he bent down, briefly exposing his holstered firearm.

Police arrested him for open carry under § 790.053. We filed a motion arguing that Florida law permits possession of a firearm on one’s own property and that accidental exposure is not the same as unlawful open carry. After presenting evidence, including video footage from the client’s doorbell camera, the State dropped the charge entirely.

This case highlights how an arrest does not equal guilt, and how a skilled defense can protect your record.

Frequently Asked Questions With a Florida Gun Charge Defense Attorney

Can I open carry on my own property in Florida?
Generally, yes. Florida law recognizes a homeowner’s right to possess and carry a firearm on private property. However, law enforcement sometimes disputes whether that right extends to carrying openly in front of others. An attorney can argue your rights under § 790.25 and prevent prosecutors from misapplying the law.

What if my shirt rides up and exposes my gun—can I still be arrested?
Unfortunately, yes. Many arrests stem from brief exposure. While courts have recognized that accidental display is not the same as open carry, police may still make the arrest. Having a defense lawyer is critical to ensure the case gets dismissed.

Does constitutional carry mean I can open carry now?
No. Constitutional carry only eliminated the permit requirement for concealed carry. Open carry remains prohibited under § 790.053 unless an exception applies. Believing otherwise is one of the most common mistakes that lead to arrest.

What are the penalties for open carry in Florida?
It is a second-degree misdemeanor punishable by up to 60 days in jail, a $500 fine, and probation. More importantly, a conviction creates a permanent criminal record that can damage your future. A defense lawyer can often reduce or eliminate these penalties.

What defenses can my attorney use against an open carry charge?
Defenses include showing you were covered by an exception, proving accidental exposure, challenging an unlawful search, or establishing lack of intent. Each case is unique, and only a defense lawyer can evaluate which strategies fit your situation.

What if I was open carrying while fishing—is that legal?
Yes, open carry is lawful while fishing, camping, or hunting, and while traveling directly to and from those activities. If you were arrested in that context, you likely have a strong defense, but you need a lawyer to present it effectively.

Can a conviction affect my ability to own firearms in the future?
Yes. While a misdemeanor conviction may not trigger a full loss of firearm rights, it can create issues with background checks and licensing. Protecting your record now is essential to preserving your rights long-term.

Do I need a private attorney, or will a public defender suffice?
A public defender may not have the time to fully explore defenses or aggressively challenge the arrest. A private attorney provides the individualized attention your case deserves, fights for dismissal, and ensures you are not pressured into pleading guilty unnecessarily.

Call Our Florida Gun Charge Defense Attorney Today

 

If you are facing an open carry charge, the law is not always clear, and the consequences are serious. Do not risk your future by going without skilled representation.

Contact Musca Law 24/7/365 at 1-888-484-5057 For Your FREE Consultation

Musca Law, P.A. has a team of experienced criminal defense attorneys dedicated to defending people charged with a criminal or traffic offense. We are available 24/7/365 at 1-888-484-5057 for your FREE consultation. We have over 30 office locations throughout all of the state of Florida and serve all counties in Florida including Jacksonville, Miami, Tampa, Orlando, St. Petersburg, Hialeah, Port St. Lucie, Cape Coral, Tallahassee, Fort Lauderdale, and the Florida Panhandle.