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Florida Carry, Inc. v. Thrasher

Florida Court of Appeals, First District

May 25, 2018

Florida Carry, Inc., and Rebekah Hargrove, Appellants,
v.
John E. Thrasher, an individual, Florida State University, and David L. Perry, an individual, Appellees.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Leon County. Charles W. Dodson, Judge.

          Eric J. Friday of Kingry & Friday, PLLC, Jacksonville, for Appellants.

          Barry Richard of Greenberg Traurig, P.A., Tallahassee, for Appellees.

          BILBREY, J. [1]

         Appellants, Florida Carry, Inc., and Rebekah Hargrove, challenge the trial court's summary final judgment in favor of Appellees John Thrasher, Florida State University (FSU), and David Perry on all issues alleged in Appellants' complaint. We affirm the summary final judgment for Appellees on the issue of FSU's Game Day Plan without further comment. We affirm, as right for the wrong reason, the summary final judgment for Appellees on the challenges to the FSU Student Conduct Code provisions prohibiting certain concealed weapons license (CWL) licensees from possessing certain defensive devices including stun guns as defined by section 790.06(12)(a)13., Florida Statutes (2015) (hereinafter "defensive devices"), on FSU's campus. We affirm the summary final judgment for President Thrasher and Chief Perry individually regarding the FSU Student Conduct Code's prohibition of lawful possession of firearms in vehicles, as being the correct result as to President Thrasher and Chief Perry, although we disagree with the trial court's reasoning. We reverse the summary final judgment for FSU regarding the FSU Student Conduct Code's prohibition of lawful possession of firearms in vehicles, and we remand for further proceedings as set forth below. Finally, we affirm the trial court's order denying Appellants' post judgment motion to disqualify the trial judge.

         Background

         Appellant Florida Carry is a Florida not for profit corporation and its stated purpose is to protect the rights of its members to keep and bear arms. Appellant Ms. Hargrove is a member of Florida Carry, an FSU student, and a CWL licensee. See § 790.06, Fla. Stat. (2015) (allowing specified law-abiding persons age 21 or older to apply for a license to carry concealed weapons or firearms subject to restrictions). Appellee FSU is a public university and part of the State University System of Florida. Appellee President Thrasher is the president of FSU, and Appellee Chief Perry is the chief of the FSU police department and assistant vice president for public safety.

         The FSU Student Conduct Code prohibits, in part:

6. Weapons
a. On-campus possession or use of firearms, antique firearms, explosives, destructive devices, or other weapons or dangerous articles or substances, including but not limited to non-lethal weapons such as pellet guns, bb guns, paintball markers, slingshots, crossbows, stun guns, Tasers, metallic knuckles, archery equipment, swords, sword canes, ornamental or decorative swords/daggers/knives, or any dangerous chemical or biological agent. Note: This section does not apply to any law enforcement officer who is a student or to any student ROTC member acting under the supervision of an ROTC unit in a manner proscribed (sic) by military regulations of the United States Government, or any student whose possession of a weapon as described above is approved by the FSU Police Department for a bona fide educational purpose.

         Appellants filed the complaint on September 8, 2015. The complaint alleged the FSU Student Conduct Code violated section 790.33, Florida Statutes (2015), which - with certain exceptions not applicable here - preempts regulation of firearms by entities other than the Florida Legislature. Appellants' complaint cited our decision in Florida Carry, Inc. v. University of North Florida, 133 So.3d 966 (Fla. 1st DCA 2013) (en banc) (UNF), in support of their contention that the promulgation of certain portions of the Student Conduct Code violated Florida law.

         Appellants alleged in the complaint that Appellees knew or should have known that they were "without authority to regulate the possession of firearms on the FSU campus." Appellants further asserted that FSU improperly prohibited Ms. Hargrove and certain other CWL licensees from carrying specified defensive devices including stun guns while on FSU's campus and improperly prohibited lawful possession of firearms in vehicles.

         The parties entered into a stipulation one week after Appellants filed suit. In the stipulation, Appellees agreed that during the pendency of the litigation Appellees would not "detain, arrest, or discipline" a student, FSU employee, or faculty member who held a CWL and possessed a defensive device as described in section 790.06(12)(a)13., Florida Statutes (2015).[2] Appellees also agreed that they would not "detain, arrest, or discipline any person" for lawfully possessing a weapon or firearm in a private vehicle or lawfully possessing a handgun securely encased in a private vehicle.

         The parties did not undertake any discovery but instead filed motions for summary final judgment. Chief Perry submitted an affidavit in support of Appellees' motion where he attested that prior to the UNF decision, "FSU, like other Florida colleges and universities, believed they were authorized by Section 790.115(2)(a)3, Florida Statutes, to waive the requirement that persons be permitted to keep guns in motor vehicles on school property." Chief Perry's affidavit also stated that since he became FSU's police chief in 2006, "FSU has not arrested, prosecuted, or disciplined, or threatened to take such action, against anyone for violation of Florida laws relating to firearms or other weapons." President Thrasher also submitted an affidavit in support of summary judgment. Appellants did not submit any affidavits regarding the summary judgment motions.

         After a hearing on the competing motions, the trial court issued an order granting Appellees' motion for summary judgment on all issues. The trial court concluded that the exceptions in section 790.115(2)(a), which permit certain weapons on school property, did not include an exception for electronic weapons or devices. The trial court therefore concluded that FSU could ban defensive devices including stun guns as stated in the Student Conduct Code. The trial court also concluded that the claim regarding FSU's prohibition on possession of firearms in vehicles was moot because FSU "acted expeditiously" after the UNF decision to "ensure that campus law enforcement personnel were aware of the decision and complied with it."

         Appellants then moved to disqualify the trial judge and to vacate the order granting summary final judgment for Appellees. Those motions were denied, and Appellants brought this appeal.

         Our Prior Caselaw Regarding Firearms on University Campuses

         The Florida Legislature has preempted the field of regulation of firearms through the language in section 790.33, Florida Statutes (2015), which reads, in pertinent part:

(1) Preemption.-Except as expressly provided by the State Constitution or general law, the Legislature hereby declares that it is occupying the whole field of regulation of firearms and ammunition, including the purchase, sale, transfer, taxation, manufacture, ownership, possession, storage, and transportation thereof, to the exclusion of all existing and future county, city, town, or municipal ordinances or any administrative regulations or rules adopted by local or state government relating thereto. Any such existing ordinances, rules, or regulations are hereby declared null and void.

         Further, section 790.33 more specifically defines the actions prohibited by the statute and also creates potential causes ...


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